w 


S5 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 
LOS  ANGELES 


.4 


THE 


^» 


•^ 


LAW     OF    NATIONS 


AFFECimG   COMMERCE   DURING    WAR: 


WITH    A  EEVIEW 


OP  TDK 


JFEISDICTION,   PEAOTICE    AKD    PEOCEEDINGS 


PRIZE     COURTS. 


BT 


FKANCIS  H.  UPTON,  LL.  B. 


NEW  YORK: 

JOHN  S.  VOORHIES.   LAW  BOOKSELLER   AND   PUBLISHER, 
NO.  20  NASSAU  STEEET. 

1863. 


Entered,  according  to  Act  of  Congress,  in  the  year  1861. 

By  FRANCIS  H.   UPTON, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the 

Southern  District  of  New  York. 


O.    A.    ALVOED,  6TERK0TYPER   AKD  PBINTEK. 


Jx 

52(1 

.V7IJI 
I?t3 


INTfiODUCTORY  CORRESPONDENCE. 


United  States  Coitrt, 

Kew  Yokk,  June  3,  1861. 
F.  H.  Upton,  Esq.  :        , 

Z>ear  Sir : — It  seems  certain  that  the  unfortunate  civil  conflict  in 
which  our  country  is  engaged,  will  call  into  exercise  to  no  inconsid- 
erable extent  the  prize  jurisdiction  of  our  Courts  of  Admiralty.  If 
this  be  so,  a  work  which  shall  include  a  summary  of  the  Practice 
and  Proceedings  in  Prize  Courts,  will  be  of  great  value  to  the  pro- 
fession and  to  suitors  before  the  Prize  Courts  ol  the  country,  Ejiow- 
ing  the  interest  which  you  have  heretofore  taken  in  the  study  of  this 
subject,  and  your  past  experience  in  the  practice  in  prize  causes,  we 
suggest  to  you,  if  you  may  control  your  time  for  suc4i  purpose,  that 
you  undertake  the  preparation  of  such  a  work  as  shall  supply,  in  this 
respect,  the  urgent  want  of  the  profession  and  of  the  community. 

Yours,  respectfully, 

Sam.  E..  Betts, 

Judge  of  the  Dist.  Court  of  the  United  States. 
Henky  H.  Elliott, 
E.  H.  Owen, 

Prize  CommissionerB. 


To  the  Honorable  Samuel  R.  Betts,  Judge  of  the  Distkict  Coukt 
of  the  United  States,  and  E.  H.  Owen  and  Henry  H.  Elliott, 
EsQS.,  Prize  Commissioners. 

The  suggestion,  formally  communicated  to  me  in  your  note  of  the 
3d  of  June  last,  was  informally  made  by  one  of  you,  in  a  conversation 
had  directly  after  the  organization  of  the  Federal  Court  for  the  exer- 
cise of  its  prize  jurisdiction. 

Pursuant  to  that  suggestion,  it  was  my  original  purpose  to  limit 
my  labors  to  the  endeavor  to  supply  what  seemed  to  be  an  urgent 
necessity,  namely :  a  review  of  the  origin  and  character  of  the 
jurisdiction  of  Prize  Courts,  and  of  the  Practice  and  Proceedings 


ifie948n 


IV  INTEODUCTOEY    COEEESPONDEjS'CE. 

adopted  by  them,  in  the  administration  of  the  international  law  of 
maritime  warfare. 

In  tlie  progress  of  mj  labors  to  this  end,  I  became  persuaded  that 
a  preliminary  review  of  the  law  of  nations,  so  far  as  they  relate 
to  the  interests  of  commerce  in  time  of  war,  was  essential  to  the 
just  appreciation  of  the  peculiar  jurisdiction  and  practice  of  prize 
tribunals. 

It  is  now  nearly  a  half  century  since  there  has  existed,  in  our 
country,  any  immediate  practical  necessity  of  a  familiarity  with  the 
principles  and  rules  of  this  law.  It  is,  therefore,  not  surprising,  that 
in  the  recent  discussions,  resulting  from  the  present  emergency,  upon 
the  interesting  subjects  of  lawful  belligerents  and  their  rights,  of  the 
rights  and  obligations  of  neutrals,  of  the  law  of  blockade,  of  contra- 
band traffic,  and  of  other  kindred  topics,  vague  and  imperfect  notions 
should  be  found  to  be  prevalent. 

In  view  of  this,  I  hope  that  you  may  justify  a  departure  from  my 
first  intention,  although  it  has  occasioned  some  delay  in  a  compliance 
with  vour  suo-o-estion. 

In  the  review  of  the  important  questions  of  international  law,  con- 
tained in  the  preliminary  chapters  of  the  work  which  I  now  present 
to  you,  no  attempt  at  originality  has  been  ventured,  other  than  that 
involved  in  the  arrangement  and  method  of  presenting  the  subjects — 
and  as  to  tliat  portion  of  the  work  which  treats  of  the  jurisdiction,  prac- 
tice and  proceedings  of  prize  courts — it  is,  and  could  be,  little  else 
than  a  methodized  arrangement  of  the  rich  materials  already  fm-- 
nislied  from  the  abundant  stores  of  Lord  Stowell  and  Mr.  Justice 
Story. 

Thus  methodized  and  arranged,  these  subjects  are  now,  for  the  first 
time,  connected  in  one  treatise.  I  sincerely  trust  that  the  result, 
while  meeting  your  approval,  may  prove  to  be,  not  of  mere  tempo- 
rary interest,  to  cease  with  the  termination  of  the  civil  discord  which 
has  prompted  it,  but  of  substantial  and  permanent  utility — as  well  to 
the  statesmen  and  merchant  as  the  lawyer. 

Yours,  respectfully, 

F.  H.  Upton. 
New  York,  July,  1861. 


PREFACE  TO  THE  SECOND  EDITION. 


It  was  fortunate  for  the  wellbeing  of  the  United  States,  wlien  the 
standard  of  rebellion  was  raised  to  overtlirow  the  govennnent,  that 
the  direction  and  management  of  its  naval  affairs  should  have  been 
committed  to  the  present  distinguished  head  of  that  department. 

Under  the  judicious  guidance,  incomparable  energy,  and  rare  ad- 
ministrative capacity,  which  he  has  brought  to  the  service,  tlie  world 
has  witnessed  with  admiring  wonder,  the  amazing  change  which  a 
few  brief  months  have  wrought  in  the  naval  power  of  the  nation. 

From  a  condition  of  humiliating  insignificance  and  inethciency, 
in  which  he  found  it  (induced  mainly  by  the  jealous  and  uniform 
hostility  to  its  encouragement  and  increase,  on  the  part  of  the  slave- 
holding  section  of  the  Union,  which,  in  the  name  of  democracy,  had 
hitherto  controlled  the  affairs  of  the  government),  out  of  the  great 
exigencies  and  boundless  resources  of  the  nation,  it  has  suddenly 
started  into  life — a  gigantic  and  invincible  power — even  as  Minerva 
is  said  to  have  sprung,  all  armed,  from  the  head  of  Jove. 

Its  achievements  in  the  reduction  of  fortresses,  hitherto  deemed  im- 
pregnable to  the  assault  of  naval  armaments,  have  become  memorable 
epochs  in  naval  history. 

Its  agency  in  the  enforcement  of  the  government  interdict  of  com- 
mercial intercourse  with  the  insurgent  population,  over  thousands  of 
miles  of  coast  upon  the  Atlantic  Ocean  and  the  Gulf  of  Mexico,  has 
been  not  only  of  inestimable  value  to  the  nation,  but  wholly  unpre- 
cedented in  the  annals  of  blockading  service. 

The  curse  of  slavery,  and  its  withering  influences,  being  happily 
withdrawn  from  the  cou/trol  of  the  government — by  God's  blessing 
never  to  be  restored — a  complete  revolution  in  the  policy  of  the 
nation  is  as  immediate  as  it  was  inevitable ;  and  hereafter,  the 
nation's  navy  will  become  and  remain  the  great  right  arm  of  the 
nation's  defence. 

Henceforth,  all  subjects,  in  any  manner  connected  with  the  man- 
agement and  interests  of  this  great  power,  will  assume  an  importance 
hitherto  unackno\yledged  or  unknown. 

The  numerous  and  important  (y.iestions  in  the  law  of  nations  affect- 
ing the  interests  of  neutral  commerce,  which  have  grown  out  of  the 
civi^  war  in  the  United  States — ^the  luomentous  issues  discussed  iand 


VI  PREFACE   TO    THE    SECOJSD   EDITION. 

determined  in  tlie  recent  adjudications  by  the  Federal  courts,  upon 
the  maritime  caj)tures  made  bv  the  naval  forces  of  the  government 
in  the  prosecution  of  the  war — the  many  interesting  subjects  involved 
in  those  adjudications,  connected  with  the  practice  and  proceedings 
of  courts,  organized  for  the  administration  of  the  law  of  prize — and 
the  recent  congressional  legislation  upon  matters  incident  to  maritime 
warfare,  have  combined  to  render  desirable,  if  not  necessary,  the  new 
and  greatly  enlarged  edition  of  this  work,  which  is  now  presented  to 
the  profession  and  the  public. 

The  additions,  which  exceed  in  volume  the  original  text,  are  placed 
at  the  termination  of  the  respective  chapters  of  the  first  edition,  which 
treat  of  subjects  cognate  to  those  of  the  addenda,  instead  of  being 
given  the  awkward  and  inconvenient  position  of  foot-notes,  or  the 
more  undesirable  form  of  an  appendix. 

The  opportunity  has  not  been  neglected  to  correct  several  errors 
which  had  escaped  notice  in  the  original  text,  to  supply  a  more  copi- 
ous and  convenient  index,  or  table  of  contents,  for  reference,  and 
also  a  coni])lete  list  of  cited  authorities. 

The  author  desires  to  avail  of  this  occasion,  to  express  his  acknowl- 
edgments for  the  many  kind  and  flattering  notices  of  his  work,  by 
the  press  of  the  country,  as  well  as  for  its  gracious  and  favorable  recep- 
tion in  the  navy  and  by  the  profession ;  and  he  ventures  to  indulge  a 
hope,  that  his  larger  labors  in  the  preparation  of  this  edition,  will  be 
amply  rewarded,  by  its  greatly  enhanced  value  and  utility,  as  a  text- 
book for  future  reference. 


LIST  OF  CASES  CITED  IN  THIS  VOLUME. 


Alexander,  the,  24. 

Abbey,  the,  31. 

Ann  Greene,  the,  42,  110,  119,  201,  246. 

Anna  Catherina,  the,  112, 125,  405,  409,  424. 

Ann,  the,  1 14. 

Aurora,  the,  138. 

Ariadne,  the,  138. 

Anoydt  Gedacht,  the,  141 . 

Amor  Parentiim,  the,  178,  416, 

Amiable  Nancy,  the,  188. 

Acteon,  the,  188,  200. 

Anne,  the,  190,  200. 

Audacious,  the,  207. 

Amitie,  the,  211. 

Assievedo  vs.  Cambridge,  238. 

Adelaide,  the,  279. 

Arthur,  the,  284. 

Adonis,  the,  285. 

Active,  the,  286. 

Apollo,  the,  331,  400,  423. 

Atlanta,  the,  333. 

Antelope,  the,  336. 

Anna  Maria,  the,  336,  292. 

Ariadne,  the,  339,  412. 

An  then  vs.  Fisher,  389. 

Arabella  and  Madeira,  the,  390,  420. 

Alexander,  the,  394,  408,  412. 

Adeline,  the,  406. 

Aver3%  the,  403. 

Abbey,  the,  403,  412. 

Amidie,  the,  404. 

Ann,  the,  409. 

Antouia  .Johanna,  the,  410. 

Arco,  the,  411. 

Atlas,  the,  41],  412, 

Aurora,  the,  411,  412. 

Adonis,  the,  412. 

Adeline,  the,  421. 

Actif,  the,  420. 

Asa  Grande,  the,  423. 

Adriana,  the,  426. 

Alligator,  the,  432. 

Arthur,  the,  297. 

Admiral,  the,  295,  323. 

Amy  Warwick,  the,  151,  156,  82,  459. 

.\ctor,  the,  441. 

A.  .1.  Yieu,  the,  441. 


Anna,  the,  439,  254. 
Agnes  H.  Ward,  the,  463. 
Aigburth,  the,  467. 

B. 

Bella  Gnidita,  the,  23. 
Bell  vs.  Gibson,  30. 
Bagloholc,  ex  parte,  36. 
Brown,  ts.  U.  S.,  40. 
Boussomaker,  ex  parte,  43. 
Benson  rs.  Boyle,  110. 
Bell  vs.  Reid,  1 14. 
Bernou,  the,  115. 
Bromley  rs.  Hazeltine,  118. 
Boedes'Lust,  the,  167,  412. 
Botlinia  and  Janstoff,  the, 202. 
Belle  Coquette,  the,  211. 
Bellona,  the,  213. 
Buenos  Ayres,  the,  219. 
Briti.sh  Guiana,  the,  228. 
Bon  A  venture,  the,  232. 
Betsy,  the,  241,  391,  403. 
Belle,  the,  243. 
Bellona,  the,  245. 
Barbara,  the.  247. 
Betsy,  the,  276,  393,  422. 
Betsy,  the,  280,  432. 
Betsy  and  George,  the,  286. 
Brutu.s,  the,  231. 
Mende  Brodee,  331. 
Bingham  vs.  Cabot,  391,  416. 
Bolch  vs.  Barrel,  403. 
Bernou,  the,  409,  411. 
Babillon,  the,  417. 
British  Empire,  the,  436. 


Crawford,  ts.  The  Wm.  Penn,  27. 
Charlotte,  the,  195. 
Constautia  Harlasten,  the.  201. 
Codex  Maritima,  the,  202. 
Canada,  the,  :i07. 
Cape  of  (iood  Hope,  the,  225. 
Constant  Mary,  the,  238. 
Charlotte  Caroline,  the,  244. 
Carlolta,  the,  247. 
Carolina,  the,  26:;. 


VUl 


LIST    Ui    CASES    CITED. 


Calypso,  the,  4:1,  1:79,  339. 

Columbia,  the,  28.'. 

Charlotte  Christien,  the,  283. 

(,:hristiansberg,  tlie,  424,  287. 

Columbia,  the.  287. 

Cross  vs.  Harrison,  304. 

Charlotte  Fox,  the,  328. 

Commcrceu,  tlie,  330. 

Charlotte,  the,  33 1. 

Constitution,  the,  333. 

Cotistaiitia,  the,  333. 

Carolina,  tlie,  333. 

Concordia,  the,  395,  338. 

Catherine  Elizabeth,  the,  343. 

Christoi)he,  the,  390. 

Comet,  the,  3'.I0. 

Copenhagen,  the,  431,  391,  405. 

Cossack,  the,  392. 

Catlierine  and  Ann,  the,  393. 

Cornelius  and  Maria,  the,  403. 

Countess  of  Lauderdale,  the,  407,  420. 

Celt,  the,  409. 

Commerce,  the,  410. 

Carl  Walter,  the.  429,  411,  431. 

Clorinde,  the,  117. 

Ceylon,  the,  42ti. 

Cosmopolite,  tlie,  420. 

Christina  Mari;i,  the,  423. 

Catharine  and  Anna,  the,  423. 

Charlotte  Caroline,  the,  428. 

Cheshire,  the,  202,  441. 

Cienshaw,  the,  G7,  153. 

Captain  Speddon,  the,  441. 

Circassian,  the,  439. 


D. 


De  Bilboa,  the,  33. 

Dree  Gebroeders,  the,  34. 

De  Luneville  vs.  Phillips,  113. 

Danou.s,  the,  113. 

Dias  vs.  Revenge,  the,  187. 

Dash,  the,  KS9. 

Diligcntia,  tiie,  103. 

Donna  Barbara,  the,  196. 

Die  l-'riodamur,  the,  391. 

Del  Col  )v.  Arnold,  392. 

Divina  Pastor,  the,  12. 

Diafjie,  the,  26. 

Diana,  the,  422,  117,  201,  202,  429. 

Dos  liermanos,  the,  119. 

Dree  Uebroedcrs,  12().  410. 

Denkliaar  African,  the,  141,  411. 

De  Bilboa,  the,  113,  411. 

Dordrecht,  the,  228. 

Dickenson,  tlio,  241. 

Dorothy  Foster,  the,  245. 

Die  Frienden,  the,  285. 


Drummond,  the,  333. 

Duckworth  vs.  Tucker,  391,  413,  415. 

Diana,  the,  406. 

Danaous,  the.  412. 

Dispatch,  the,  412,  415. 

Decatur  vs.  Chew,  410. 

Diomede,  the,  416. 

Delta,  the,  154,  192. 

Delight,  the,  441. 

E. 

Eliza  Ann,  the,  5. 
Endraught,  the,  126,  229,  409. 
Khzabeth,  the,  135. 
Eagle,  the,  194. 
Eole,  L'  the,  202. 
Eleauora,  the,  203. 
Etoile,  the,  213,  230. 
El  Kayo,  the,  221. 
Empress,  the,  230. 
Edward  and  Mary,  the,  245. 
Eleanor  Catheriua,  the,  247. 
Emanuel,  the,  262.  *' 

Edward,  tb.e,  2G3. 
Ebenezer,  the,  263. 
Edward,  the,  330.  , 

Endraught,  the,  331. 
Eleonora  Wilhelmina,  the,  331. 
Evart  Evarts,  the,  331. 
Eleonora,  the,  336. 
Elizabeth,  the,  338. 
Eliza,  tlie,  389. 
Elsebe,  the,  401,  394,  412. 
Eliza  and  Katy,  the,  395,  400. 
Etrusco,  the,  403. 
Exeter,  the,  417. 
Einighedeu.  the,  422. 
Eenrom,  the,  286,  427. 
Emily  St.  Pierre,  the,  254. 
Empress,  the,  292,  316,  455. 
Ellis,  the,  441,  439. 
Elizabeth,  the,  439. 
Ella  AVarlcy,  the,  439. 

F. 

Franklin,  the,  30,  242,  425. 

Francis,  the,  140,  201. 

Fann\-,  the.  186. 

Faderlandt,  the,  200,  213,  414. 

Felicity,  the,  200.  202. 

Elorc,  the,  21  \.     ' 

Forsigheid,  the,  213. 
I  Financier,  the,  216. 
■  Flad  Oyen,  the,  238,  385,  420. 
I  Frederick  Molke,  the,  277. 

Fortuna,  the,  285,  400. 


LIST   OF   CASES   CITED. 


IX 


Fleming  vs.  Page,  304. 

Falcon,  the,  390. 

Francis,  the,  403,  405,  409,  411,  423. 

Frederick,  the,  409. 

Fanny,  the,  412. 

Fitzsimmons  vs.  Mar.  Ins.  Co.,  293. 

Forest  King,  the,  67. 

F.  W.  Johnson,  the,  76. 

G. 

Gist  vs.  Mason,  22,  30. 
Gloire,  the,  26. 
Gertrude,  the,  169. 
Grotius,  the,  190. 
Galen,  the,  198,  229. 
George,  the,  200. 
Guillaume  Tell,  the,  216. 
Genereux,  the,  218. 
Goss  vs.  \Yithers,  238. 
Goodrich  vs.  Gordon,  248. 
Gerard  vs.  Hare,  248. 
Gute  Erwarb,  the,  283. 
General  Hamilton,  the,  284. 
Gute  Geselschaft,  328,  423. 
George,  the,  337,  392,  403. 
Graff  Bernstaff,  the,  404,  427. 
Ghertighet,  the,  428. 
Green  vs.  Wood,  312. 
General  Green,  the,  316,  67. 
General  Parkhill,  the,  55,  150. 

H. 

Hoop,  the,  17. 

Hermann,  the,  129,  229. 

Hiram,  the,  138. 

Herstelder,  the,  167. 

Haase,  the,  178. 

Hercules,  the,  190. 

Harmony,  the,  115,  409. 

Helen,  the,  233,  243. 

Hope'  the,  243. 

Henry,  the,  243. 

Huntress,  the,  247. 

Hoffnung,  the,  263. 

Hector,  the,  269. 

Henrick  and  Maria,  the,  277,  385,  390. 

Hartig  Hane,  the,  282. 

Haabet,  the,  328. 

Hope,  the,  333. 

Hoop,  the,  412,  338,  405. 

Hudson  vs.  Guester,  389. 

Home  vs.  Camden,  389.  413. 

Herkimer,  the,  399,  416. 

Huldah,  the,  394,  403. 

Harrison,  the,  403. 

Ilatsdelda,  the,  411. 


Hiram,  the,  412. 

Haase,  the.  416. 

Hill  vs.  Ross,  417. 

Horatio,  the,  421. 

Haabet,  the,  428. 

Hoffnung,  the,  429. 

Hiawatha,  the,  316,  321,  153,  66,  453. 

HaUie  Jackson  the,  316,  321. 

Hannah  M.  Johnson,  the,  316,  67. 

Henrj"^  Lewis,  the,  439,  254. 

Henry  C.  Brooks,  the,  249. 


Indian  Chief,  the,  112,  119,  409. 
Imena,  the.  299. 
Invincible,  the,  336. 
Indiana,  tlie,  409. 
Imena,  the,  412,  423. 
Industrie,  the,  423,  430. 

J. 

Joseph,  the,  24. 

Jonge  Pieter,  the,  29. 

Jonge  Ruiter,  the,  123. 

Jonge  Klassina,  127,  409. 

Jacobus  Johannes,  the,  132. 

Julia,  the,  138. 

Jan  Fredrick,  the,  141. 

Josephine,  the,  146,  409,  411. 

Joseph,  the,  178. 

John,  the,  201, 

Jaggernaich,  the,  226. 

John  and  Jane,  the,  243. 

Joanna  Tolen,  the,  263. 

Juliana,  the,  263. 

Jonge  Thomay,  the,  272. 

Josephine,  the,  273. 

Juffrow  Maria  Schroeder,  the,  277. 

Jonge  Petronella,  the,  279. 

Jonge  Pieter.  the,  285,  407,  427. 

Jonge  Margaretha,  the,  327,  331,  429. 

Jonge  Hermaney,  the,  328. 

Jonge  Tobias,  tlie,  328,  333. 

Jonge  Andrews,  the,  330. 

Jonge  Jan,  the,  331. 

Jaffrow  Anna,  the,  339. 

Jennings  vs.  Carson,  391. 

Julia,  the,  408,  412. 

Joseph,  the,  408,  412. 

Jenny,  the,  411. 

Jan  Frederik,  the,  411. 

John,  the,  414. 

Jefferson,  the,  425. 

Juffrow  Anna,  the,  427. 

Julia,  the,  441,  439. 


s 


LIST   OF   CASES    CITED. 


K. 


Kertigheit,  the,  420. 


Lawrence,  the,  24. 

Lord  Wellington,  the,  24. 

Lindsay  Rodney,  168. 

Lively,  the,  200,  202.  392. 

Lowestofl;  the,  207. 

La  France,  223. 

L'amitit'.  the,  229. 

Lord  Middleton,  the,  230. 

Lucretia,  the,  232. 

Lord  WeUington,  248,  412. 

Lucy,  the,  269. 

Lisette,  the,  287,  333. 

Louis,  the,  336. 

Lands  vs.  Rodney,  388,  391. 

Le  Caux  vs.  Eden,  389,  391. 

Louis,  the,  389. 

La  dame  Cecile,  390. 

La  Reine  des  Anges.  392. 

La  Flora,  405,  414. 

Le  Franc,  415. 

L'Alcrte,  417. 

Lively,  the,  424. 

London  Packet,  the,  429. 

Liverpool  Packet,  the,  429. 

Lynchburg,  the,  316,  67. 

Louisa  Agnes,  the,  442. 

Lizzie  Weston,  the,  449. 

M. 

Mary,  the,  24. 

Mary  Folger,  the,  27. 

Madonna  delle  (jirazie,  34. 

McConnel  rs.  Hector,  113. 

Milton  vs.  Do  Mello,  113. 

^[ariana,  the,  146. 

Melomanc,  the,  178,  195. 

Mariamne,  the,  185. 

Mary  and  Susan,  the,  186,  411. 

Maiasouaire  ca'.  Keating,  189,  248. 

Mariamne  Flora,  the,  194. 

Mcrcurius,  the,  196. 

Mentor,  the,  200. 

Mariamne,  the,  201. 

Madonna  del  Burso,  the,  202. 

Mars,  the,  218. 

Minerva,  the,  229. 

Mars,  the,  230. 

Marguerite,  tlie,  232. 

Miller  vs.  Resolution,  248,  406. 

Moodie  vs.  Brig  Harriett,  248. 

Margaretha  Magdalcna,  the,  269. 


]  Maria,  the,  336.  , 

I  Minerva,  the  411,  272. 

\  Mariamne,  the,  393,  273,  403. 

f  Mercurius,  the,  277. 

Magnus,  the,  410,  406,  286. 

Martin  vs.  Mott,  306. 

Maria,  the,  429,  341,  328. 

Margaret,  the,  332. 

Madison,  the,  333. 

Madonna  del  Burso,  the,  494. 

Mentor,  the.  403. 

McConnel  vs.  Hector,  409. 

Merrimack,  the,  411. 

Mary,  the,  423,  412. 

Mars,  the,  412. 

Matilda,  the,  417. 

Maria  Powloua,  the,  422. 

Magnus,  the,  429. 

Madieros  vs.  Hill,  326. 

Major  Barbour,  the,  291. 

Mersey,  the,  290. 

McCluskie  vs.  CromweU,  313. 

Mersey,  the,  152. 

Mary  Alice,  the,  249. 

Memphis,  the,  439. 

Magnolia,  the,'  439. 

N. 

Neptune,  the,  28. 

Nereide,  the,  123. 

Negotie  en  Zeevart,  the,  141. 

Nuestra  Senora  de  los  Dolores,  the,  186, 

Nancy,  the,  211. 

Niemen,  the,  212. 

New  Adventure,  the,  269. 

Nancy,  the,  276. 

Neptunus,  the,  279,  409. 

Neutralitet,  the,  283. 

Nostra  Senora  de  Begona,  the,  331. 

Nelly,  the,  408. 

Noyt  Gcdnacht,  the  411. 

Naiade,  the,  412. 

Neptunus,  the,  412. 

Nereide,  the,  412. 

Nostrado  Con;'cicas,  the,  420. 

Nostra  Signora  do  Rosano,  421. 

Nancy,  the,  427. 

Newell  vs.  The  People,  313. 

Nostra  Signora  de  Regla,  the,  439. 

Nassau,  the,  -139. 

North  Carolina,  the,  67. 

0. 

Ocean,  the,  118,  285. 
0' Mealy  vs.  Wilson,  118. 
Odin,  the,  208. 


LIST   OF   CASES    CITED. 


XI 


Oiituibiis,  the,  411.  • 
Oswell  vs.  Vigne,  41 2 
Oster  Reiser,  the,  429. 
Osceola,  the,  441. 
OUve,  the,  441. 


Potts  vs.  Bell,  18,  130,  159,  412. 

President,  the,  409,  111. 

Portland,  the,  409,  129. 

Princessa,  the,  133,  410. 

Purissima  Ooncepcion,  the,  202. 

Polly,  232. 

I'urissima  Ooncepcion,  the,  394,  421,  239. 

Progress,  the,  242. 

Providence,  the,  245. 

Plioenix,  the,  410,  263. 

Provideutia,  the,  269. 

Polly,  the,  427,  270. 

I'utsdam,  the,  284. 

I'riiice  Frederick,  the,  336. 

Piziirro,  the,  339. 

Pomona,  the,  390,  389. 

PLacock,  the,  422,  389. 

I'rincipe,  the,  423,  394. 

I'ort  Mary,  the,  405. 

Planter's  Wench,  the,  410. 

Peuhallow  vs.  Doane,  416. 

Printz  Henry,  the,  417. 

Princessa,  the,  417. 

Perseverance,  the,  420. 

Prosper,  the,  429. 

Parkmaa  vs.  Allen,  288. 

Patras,  the,  439. 

Pioneer,  the,  67. 

R. 

Rapid,  the,  23. 
Rose  in  Bloom,  the,  26, 
Ro.siue,  the,  27. 
Rebecca,  the,  178,  190. 
Resolution,  the,  191. 
Robert,  the,  219. 
Rattlesnake,  the,  230. 
Rose,  the,  268. 
Rendsburg,  the,  269,  409. 
Roll  a,  the,  277. 
Rose  vs.  Himely,  307. 
Ranger,  the,  320. 
Richmond,  the,  331. 
Ringaude  Jacob,  the,  331. 
Rapid,  the,  412,  333. 
Ringaude  .Jacob,  the,  333. 
Resolution,  the,  394., 
Recovery,  the,  403. 
Rosalie  and  Betty,  the,  412. 


Roberts  vs.  Hartley,  415. 
Rendsburg,  the,  423. 
Romeo,  the,  426. 
Rising  Sun,  the,  427. 
Richmond,  the,  429. 
Rendsburg,  the,  431. 
Randers  Bye,  the,  288. 
Revere,  the,  316,  320,  465. 

S. 

Santissima  Trinidad,  the,  13,  183,  306. 

Samuel,  the,  29. 

San  Jose  Indiano,  the,  125. 

Sechs  Geschwestern,  the,  141. 

Sally  Griffiths,  the,  143. 

Sisters,  the,  146. 

Santa  Cruz,  the,  190. 

Short  Staple,  the,  vs.  United  States,  194. 

San  Juan  Battista,  the,  202. 

Susannah,  the,  202. 

Senor  Don  Josef,  the,  206. 

Santa  Brigida,  the,  213. 

San  Damaso,  the,  220. 

Sirius,  the,  228. 

Stella  del  Norte,  the,  228,  413. 

Sparkler,  the,  229. 

Sophie,  the,  238 

Santa  Cruz,  the,  241,  420. 

San  Francisco,  the,  241. 

Sedulous,  the,  245. 

Samson,  the,  247. 

Sally,  the,  269. 

Stest,  the,  277. 

Spes  and  Irene,  the,  280. 

Shepherdess,  the,  285. 

St.  Nicholas,  the,  286. 

Sarah  Christina,  the,  331. 

Staadt  P^mbden.  the,  332. 

Sally  Griffiths,  the,  333. 

Susan,  the,  333. 

Ships  taken  at  Genoa,  the,  388. 

Smart  vs.  Volf,  389,  391. 

St.  Juan  Battista,  the,  391,  392. 

Speculation,  the,  393,  490. 

Stadt  Embden,  the,  403. 

Susannah,  the,  403. 

SaUy,  the,  404,  411,  412. 

St.  Lawrence,  the,  408,  409,  425,  430. 

Susan  Christina,  the,  409. 

Susa,  the,  409. 

St.  Jose  Indiana,  the,  410. 

Success,  the,  410. 

Sechs  Geschwestern,  the,  411. 

Shepherdess,  the,  412. 

San  Jose,  the,  414,  417. 

Sophie,  the,  420. 

Statira,  the,  422. 


Xll 


LIST    OF    CASES    CITED. 


Sarah,  the,  423,  42G. 
Sacra  Familia,  the,  430. 
Stoddard  vs.  Read,  431. 
Sarah  Starr,  the,  147,  467. 
Shark,  the,  441. 
Stephen  Hart,  the,  439. 


Tobago,  the,  146,  201,  403. 

Twee  Gesuster,  the,  178,  223. 

Thomas  Gibbons,  the,  185. 

TwQley  Right,  the,  201. 

Two  Friends,  the,  233,  241,  246,  388. 

Twee  Gebroedcn,  the,  285. 

Twee  Gefroen,  the,  328. 

Trinde  So.stre,  the,  332. 

Two  Brothers,  the,  339. 

Talbot  vs.  Johnson,  391. 

Twee  Juffrowen,  the,  407. 

Twende  Broeder,  the,  423. 

Two  Susannah.s,  the,  424. 

Tropic  Wind,  the,  96,  47. 

Trent,  the,  349. 

Toone,  the,  291.  148,  439. 

U. 

United  States  ws.  Palmer,  411. 
Urania,  the,  414,  243. 
United  Stales  vs.  Peters,  391. 
Union,  the,  414. 

V. 

Yenus,  the,  25,  409,  44. 
Virginie,  the,  1 1 9,  409. 
Vigilantia,  the,  128,  131,  339,  400. 
Vroede  Schottys,  the,  136. 
Vrow  Margaretha,  the,  140,  411. 


Vrow  Catherina,  the,  146,  405. 
Yryheid,  the,  204. 
Virginie,  the,  229. 
Victoria,  the,  390,  420. 
Vigilantia,  the,  409,  412. 
Vrow  Judith,  the,  412,  422, 
Vrow  Catherina,  the,  109.   '*- 
Venus,  the,  110. 
Vestal^  the.  206. 
Vryheid,  the,  211. 
Volant,  the,  271. 
Vrow  Judith,  the,  282. 
Vrow  Hermina,  the,  427. 

W. 

"Ware  vs.  Hilton,  40. 

Woodbridge,  the.  193,  196. 

Wilhelmsburg,  the,  202. 

Washington,  the,  202,  394. 

Waaksamheid,  the,  229. 

Walsingham  Packet,  the,  240,  403,  427. 

Waansted,  the,  245. 

Waronskau,  the,  247. 

Wilhelmina,  the,  263. 

William,  the,  260. 

Wolvaart  von  Pmaw,the,  279,  427. 

Willis  vs.  Commissioners  of  Prize,  389. 

William,  the,  393,  403,  422. 

Wilcocks  vs.  Union  Ins.  Co.,  393. 

Wilhelmsburg,  the,  394.  s 

WUliam  and  Mary,  the,  400,  414. 

Waakemsheid,  the  414. 

Wilder,  the,  439. 

Winnifred,  the,  67. 


Zuchman,  the,  328. 
Zelden  Rust,  the,  330. 


TABLE    OF    CONTENTS. 


CHAPTER    I. 

OP  WAR,   AJTO  ITS  DECLARATION,   AND  HEREIN  WHO  ARE  LAWFUL  BELLIGERENTS. 

PAGE. 

War  defined 1 

Tlie  war-making  power 1 

In  iho  Uniied  States  vested  solely  in  the  Federal  Congress 2 

Formal  declaration  requisite  in  early  ages 4 

Not  requisite  by  the  existing  law  of  nations 5 

Proclamation  requisite  for  guidance  of  citizens  and  neutrals 5 

In  the  United  States  an  act  of  Congress  considered  equivalent  to  a  formal  declaration.  6 

Legal  commencement  of  hostilities 7 

t\'ho  are  lawful  belligerents 8 

Question  considered  in  connection  with,  the  civil  war  in  the  United  States 8 

Proclamation  of  Great  Britain  on  the  subject 9 

Its  effect  under  the  law  of  nations 9 

Legislative  and  judicial  precedents  in  the  United  States   10 

Legislative  precedents  not  of  binding  authority 13 

The  rebellion  against  the  United  vStates  government  being  without  precedent  in  the 
history  of  nations,  in  all  its  circumstances,  no  existing  precedent  can  indicate  the 

obligation  of  nations  to  acknowledge  the  revolters  as  lawful  belligerents 14 

CHAPTER    IL 
OP  THE  LEGAL  OBLIGATIONS  OF  BELLIGERENTS  AND  THEIR  ALLIES. 

War  terminates  commerce  between  belligerents 16 

The  foundation  of  this  doctrine 16 

Rev'iew  of  judicial  decisions  on  this  subject 17 

Contracts  suspended  between  belligerents 20 

Courts  closed  against  their  enforcement 20 

Relaxation  of  the  rule  of  suspension  of  commerce  ia  certain  cases 21 

Strictness  of  the  rule  by  the  decisions  of  United  States  courts 23 

Necessity  tor  its  rigid  enforcement 24 

Penalty  for  its  violation 24 

Truce  or  cartel  ships » .  25 

Rule  of  suspension  of  commerce  applicable  to  allies  as  well  as  to  belligerents 27 

Attempts  to  evade  the  rule  of  suspension  of  commercial  intercourse 28 

Unilbrmity  of  existing  law  of  nations  on  this  subject 30 

Rule  applicable  as  well  to  commerce  on  land  as  by  water 30 

Rigorous  enforcement  of  the  rule  within  its  just  limits 31 

Cases  illustrating  its  enforcement 31 

Mitigation  in  cases  of  great  hardship.  ...                  3-1 

Le;,'al  e!uc't  of  v.n.r  ou  the  persons,  property,  and  rights  of  citizens '.  30 

General  right  of  captures,  reprisals,  &c.    .        ...  3"; 


XIV  TABLE   OF   COT^TEISTTS. 

PAGE 

Rule  in  the  early  ages 38 

Treaty  stipulations 38 

Modern  rule  in  absence  of  treaty 39 

Property  exempt  from  capture  or  confiscation ;  public  funds 40 

Private  debts 40 

Not  conliscaiotl,  but  remedy  suspended 41 

Treaties  on  this  subject 41 

ADDENDA  TO  CHAPTER  II. 
THE   CIVIL   "WAR   IN   THE   UNITED   STATES. 

Review  of  the  judicial  discussions  and  determinations  of  the  rights  and  liabilities  re- 
sulting therefrom 44 

Belligerent  rights  exercised  by  the  United  States  in  the  conduct  of  the  war 44 

Wisdom  of  the  policy  of  the  belligerent  blockade  of  the  insurgent  ports 45 

Preference  to  a  municipal  regulation  of  closing  the  ports  as  ports  of  entry 45 

Objections  raised  to  the  validity  of  captures  for  the  violation  of  the  blockade 46 

Judicial  determinations  of  these  objections 47 

Case  of  The  Tropic  Wind.     United  States  District  Court  for  the  District  of  Columbia  48 

Opinion  of  Justice  Dunlop 4.8 

Case  of  The  General  Parkhill.     United  States  District  Court  for  the  Eastern  District 

of  Pennsylvania 55 

Opinion  of  Justice  Cadwallader 5G 

Cases  of  The  Iliuwatha,  North  Carolina,  Pioneer,    Crenshaw,  Winnifred,  Hannah  M.  m 
Jolmson,  Lynchburg,  General  Green,  Ilallie  Jackson.  Forest  King.     United  States  Dis- 
trict Court  ibr  the  Southern  District  of  New  York 67 

Opinion  of  Justice  Betts 69 

Case  of  The  F.   W.  Johnson.     United  States  District  Court  for  the  District  of  Maryland  76 

Opinion  of  Justice  Giles • 77 

Case  of  Tlie  Amy  Wariuick.  United  States  District  Court  for  the  District  of  Massachusetts  82 

Opinion  of  Justice  Sprague 83 

CHAPTER  III. 

OF  THE  KIOHTS  OF  BELLIGERENTS  TO  INTERFERE  WITH  THE  COMMERCE,  AND  TO  CAPTURE 
AND  CONFISCATE.  THE  PROrERTY  01'  OTHER  THAN  ADVERSE  BELLIGERENTS;  AND  HEREIN 
WHAT   CONSTITUTES  HOSTILITY  OF  CHARACTER,  BOTH   AS   REGARDS   PERSON  AND   PROPERTY. 

Alien  enemy  defined 108 

Hostile  character  cast  upon  persons  not  alien  enemies 109 

Hostile  character  impressed  upon  property 109 

Residence  in  hostile  jurisdiction 110 

Uniformity  of  rule  as  to  impression  of  hostile  character 110 

Rule  apf)lied  in  common-law  courts , 113 

What  conslitules  residence  in  a  hostile  country  to  impress  ahostUe  character 114 

Personal  residence  not  requisite 124 

Hostile  character  impressed  by  the  character  of  tiie  trade 124 

Doctrine  of  the  United  Stales  courts 125 

Residence  by  implication  from  official  cliaractcr 12G 

Importance  of  iho  animus  manendi  in  dcteriniuing  residence 126 

Hostile  character  resulting  from  nature  of  tin'  Iraflic 127 

National  character  of  ship  generally  detormiiied  by  the  residence  of  the  owner 130 

Liability  to  capture  determined  l>y  the  Hag  or  jiass.  .  , 130 

Sometimes  by  the  nature  of  her  employment 131 

By  employment  in  commerce  ordinarily  confined  to  the  adverse  belligerent 133 

Kspecially  when  by  authority  of  the  adverse  government 134 


TABLE   OF   CONTENTS.  XV 

PAGE 

Character  of  the  flag  impresses  the  vessel 135 

Reason  of  this  rule 137 

Attempcs  to  evade  the  rules  which  impress  hostility  of  character  upon  persons  or 

property 138 

Transfers  in  transitu 138 

Transfers  in  general 141 

Reservations  of  risk 141 

ADDENDA  TO  CHAPTER  IIL 

Recent  American  decisions  on  the  doctrme  of  hostile  character  by  hostile  residence . .  147 

Case  of  The  Sarah  Starr.     United  States  District  Court,  New  York 147 

Case  of  The  Joseph  H.  Toone.     United  States  Court,  New  York 148 

Case  of  The  General  Parkhill.     United  States  Court,  Pennsylvania 149 

Case  of  The  Revere.     United  States  Court,  Massachusetts 149 

Case  of  The  General  Parkhill.     United  States  Court,  Pennsylvania 150 

Case  of  The  Amy  Warwick.     United  States  Court,  Massachusetts 151 

Transfers  by  enemies  to  neutrals  during  war  void,  as  a  fraud  on  belligerent  rights. . .  152 

Secret  liens  disregarded  by  courts  of  prize 153 

Case  of  The  Areola.     United  States  District  Court,  Maryland 155 

Case  of  The  Amy  Warwick..     Claim  of  John  L.  Phipps  &  Co.     United  States  District 

Court,  Massachusetts 156 

CHAPTER  IV. 

OF  THE  RIGHTS  OF  BELLIGERENTS  TO  INTERFERE  WITH  EACH  OTHER'S  COMMERCE,  AND  CAP- 
TURE EACH  other's  PROPERTY ;  AND  HEREIN  OF  EMBARGO ;  OP  LETTERS  OF  MARQUE  AND 
REPRISAL;  OF  CAPTURE,  AND  JOINT-CAPTURE,  AND  RECAPTURE;  OP  POSTLIMINIUM  AND 
MILITARY   SALVAGE. 

The  commerce  of  the  enemy  the  legitimate  prize  of  war 159 

Leading  principles  of  national  law  on  this  subject 159 

The  right  as  applied  to  slave  property  resulting  from  the  civil  war  in  the  United  States  161 

Professor  Parson's  opinion  upon  this  subject 162 

Embargo  defined 1 64 

Warlike  and  civil 1(J5 

Modern  practice  as  to  embargo 165 

Operation  and  effect  of  embargo 166 

Civil  embargo ; 168 

The  embargo  of  the  United  States  of  1807 169 

Its  oppressive  effects  on  the  commerce  of  the  nation 169 

Submitted  to  when  pronounced  constitutional  by  the  courts 170 

Reprisals  generally 170 

To  redress  individual  wrongs 171 

Right  acknowledged  by  all  nations 175 

Acted  upon  by  the  United  States 175 

Capture — its  definition 175 

By  public  vessels , 176 

By  privateers ]76 

Their  authority,  power,  and  rights 176 

Privateers  must  be  commissioned 177 

Doctrine  of  United  States  courts  on  tins  subject 178 

Character  of  privateermg 178 

In  conflict  with  the  spirit  of  the  age 178 

Efforts  of  the  United  States  government  to  discountenance  privateering 179 

Revocation  of  commissions  of  privateers , . . .  1 85 

Validity  of  capture  not  affected  by  reason  of  the  captor  bemg  an  alien  enemy 186 


X\'l  TABLE   OF   CONTENTS. 

PAGE 

Distinction  between  privateers  and  letters  of  marque 186 

Registered  owner  of  privateer  the  person  liable 186 

This  rule  not  applicable  to  foreigners 1 87 

Liability  of  owners  of  privateers 187 

Basis  of  liability 187 

Limitation  of  liability 187 

Owners  liable  jointly  and  severally 188 

Privateers  not  considered  private  property  on  capitulation 188 

Limitation  of  the  authority  of  letters  of  marque  by  the  law  of  nations 189 

Legality  of  captures  dependent  on  government  orders 189 

Intention  to  seize  requisite  to  a  valid  capture 189 

Capture  in  neutral  waters  valid  as  between  belligerents 190 

Question  of  time  of  capture  considered 190 

And  whether  actual  possession  necessary 190 

Liability  for  mistakes  in  engagements  with  friendly  vessels 194 

Lawful  captures — only  by  public  armed  vessels  or  private  armed  vessels  commissioned  194 

Capture  l;y  boats  belonging  to  men-of-war , 195 

Restitution  no  bar  to  a  second  capture 196 

Lawful  capture  by  a  convoying  ship 197 

"Wrong-doer  only  liable  for  illegal  capture 198 

Vindictive  damages  never  given  but  in  extraordinary  cases 200 

Prize  property  subject  only  to  visible  and  immediate  encumbrances. .  .* 201 

Prize  must  be  sent  to  convenient  port 201 

Rule  as  to  this 201 

Duty  of  captors  on  arrival ; 202 

To  proceed  forthwith  to  adjudication 202 

Prize  master  and  crew 203 

Joint-Captuue. — Doctrine  of  constructive  assistance 204 

Vessels  in  sight 205 

Doctrine  of  constructive  assistance  as  between  public  and  private  armed  vessels 209 

The  rule ^. . .  211 

The  reasons  of  the  rule 211 

Joint-enterprise  as  affecting  the  question  of  constructive  assistance 213 

Rights  of  revenue  cutters  as  joint-captors 213 

No  joint-capture  when  in  siglit  only  from  the  masthead 219 

The  being  in  sight  to  be  affirmatively  proved 220 

Mere  intimidation,  without  co-operation,  insufScient  to  establish  rights  as  joint-captors  221 

Nor  mere  association 221 

Unless  in  a  direct  military  capacity 221 

Whether  army  forces  can  be  entitled  as  joint-captors  with  naval  forces 225 

Material  service  requisite 226 

Rights  of  joint-captors  not  vitiated  by  the  fraud  of  actual  captors 228 

Previous  concert,  sufficient  basis  to  entitle  as  joint-captor,  if  not  abandoned  at  the 

time  of  capture 230 

Recaptuiie  and  Rbscue. — Defined  and  distinguished 233 

To  recapture — a  d\ity 233 

To  rescue — a  meritorious  act 233 

Postliminium. — The  right  considered 234 

To  change  property  in  favor  of  vendee 234 

Sentence  of  condemnation  necessary 238 

Termination  of  the  rights  of  postliminium 239 

The  right  of  postliminium  by  the  laws  of  the  United  States 240 

Salvagk. — Right  of  salvage  on  restitution  by  recaptors 241 

Rate  of  compensation 241 

Salvaije  in  cases  of  rescue  as  well  as  in  cases  of  recapture 242 

No  commission  requisite  for  recapture 242 

Nor  to  entitle  to  salvage 242 


TABLE    OF    CONTENTS.  XVll 

PAGE 

Salvage  not  due  to  a  national  vessel  on  the  recapture  of  another  national  vessel 243 

No  hazard  requisite  as  basis  of  right  of  salvage 243 

Every  person  aiding  in  a  rescue  has  a  lien  for  salvage 243 

The  doctrine  of  vessels  in  sight  applicable  to  recaptures  as  basis  of  salvage  claim  ....  244 

Not  allowed  to  privateers  in  sight  when  the  recapture  is  made  by  a  national  ship 244 

Revenue  cutters  entitled  as  private  ships 245 

Freight  earned  contributes  to  salvage 245 

Salvage  due  as  neutrals 24C 

Ransom. — Prohibited  in  Great  Britain  by  statute 247 

Valid  under  law  of  nations  when  not  prohibited  by  statute 247 

Not  prohibited  in  the  United  States 248 

Its  effect 248 

ADDENDA  TO  CHAPTER  IV. 

Recapture  and  Military  Salvage 249 

Joint-Capture 253 

Rescue 254 

CHAPTER  V. 

OF  THE  EFFECT  OP  "WAR  UPON  THE  COMMERCE   OP  NEUTRALS;   AND  HEREIN  OF  BLOCKADE; 
OF   CONTRABAND   OF   WAR;    AND   OF   THE   RIGHT   OF   VISITATION   AND   SEARCH. 

Who  are  neutrals 259 

Their  general  commercial  rights 259 

Coasting  and  colonial  trade 259 

Neutrals  excluded  therefrom 260 

Character  and  reason  of  this  rule  of  exclusion 260 

Consequences  of  its  violation 262 

Confiscation  in  cases  of  fraud 263 

Rule  the  same  as  to  the  colonial  and  the  coasting  trade  of  belligerents 263 

Rule  of  exclusion  does  not  operate,  if  it  would  deprive  the  neutral  of  his  accustomed 

commerce 267 

The  rule  relaxed  after,  and  by  reason  of  the  rise  of  the  United  States  government.. . .  267 

The  application  of  the  rule,  and  the  exceptions  in  particular  cases 268 

Where  direct  trade  is  unlawful,  cannot  be  pursued  circuitously 270 

Penalty  for  violation  of  this  rule 272 

The  armed  neutrality 274 

Doctrine  of  the  United  States  on  the  subject  of  ','free  ships  free  goods" 275 

Blockade. — Its  definition 275 

A  beihgerent  right 275 

Requisites  to  its  validity •. 276 

Actual  and  effective 276 

Knowledge  of  blockade 278 

What  is  a  violation  of  blockade 283 

What  excuses  a  violation 284 

Penalty  for  violation 287 

Case  of  r/ie  Chrisiiansberr/ 288 

Case  of  The  Elizabeth 290 

Cases  of  The  Cheshire  and  The  Delta 291 

Blockade  of  the  southern  ports  of  the  United  States 298 

Judicial  Construction  of  the  Executive  Proclamation 309 

Opinion  of  Justice  Grier 323 

Contraband  of  War 32T 

Contraband  commerce  prohibited  to  neutrals 327 

Contraband  defined 327 


XVlll  TABLE    OF   CONTENTS. 

PAGE 

Question  as  to  prorisions 328 

Pre-emplion  substituted  for  confiscation  as  to  provisions 329 

Destined  use — important  consideration  in  determining  questions  of  contraband 330 

"Where  innocent  goods  are  mixed  with  contraband,  confiscation  attaches  to  all 332 

Hostile  dispatches  contraband,  subjecting  vessel  to  confiscation 332 

And  cargo,  if  owned  by  the  owner  of  the  ship 333 

Confiscation  of  entire  property,  the  ancient  penalty  for  deaUng  in  contraband — relaxa- 
tion of  its  rigor  in  the  modern  practice 333 

Treaty  provisions  on  the  subject. 333 

Visitation  and  Seap.cii 334 

Belligerent  right  established  in  the  law  of  nations 334 

Confiscation  the  penalty  of  resistance 335 

Applies  only  to  merchant  vessels 336 

How  exercised 336 

Treaty  provisions 331 

Ship's  papers  proper  to  be  examined 33T 

The  right  as  apphcable  to  merchant  vessels  sailing  under  convoy 339 

The  right  as  applicable  to  ships  of  war 343 

The  right  in  aid  of  the  suppression  of  the  slave  trade   345 

Neutral  Territory. — Inviolable  by  belligerents 346 

Captures  illegal  made  within  neutral  jurisdiction 347 

Neutral  states  no  power  to  release  captures  brought  within  their  jurisdiction 348 

Treaties  on  this  subject 348 

addenda  to  chapter  v. 

Case  op  the  Tbent 349 

CHAPTER  YI. 

OK  THE    PRIZE    JimiSDICTION  OF   COURTS  OP   ADMIRALTY,    AND  OP  THE   PRACTICE   AND  PRO- 
CEEDINGS OF  PRIZE   COURTS. 

Prize  jurisdiction  exclusively  vested  in  admiralty  courts 383 

In  United  States  and  Great  Britain 383 

Exclusive  in  courts  of  the  captor 384 

Jurisdiction  may  be  exercised  while  the  prize  is  in  a  neutral  port 385 

Decree  of  condemnation  requisite  to  complete  a  transfer  of  the  property 385 

Decree  final  between  the  parties 385 

Not  between  the  governments , 385 

Letter  of  Lord  Stowell  and  Sir  John  NichoU  to  John  Jay 386 

Judge  Story's  notes  in  Wheaton 386 

Prize  Jurisdiction 381 

Its  extent,  character,  and  peculiarity 388 

Rules  as  to  first  duty  of  captors  on  securing  possession  of  prize 393 

To  exercise  proper  care  in  its  safe  custody 393 

Liable  for  negligence  or  misconduct 393 

Duty  to  send  prize  into  a  convenient  port 394 

With  prize-master  and  prize  crew,  unless  captured  crew  consent  to  navigate 394 

Captors  prohibited  from  converting  cargo,  or  breaking  bulk 394 

Except  in  case  of  overruhng  necessity •  .  395 

Duty  of  captors  to  send  in  the  master  and  officers  and  some  of  the  crew  of  the  prize 

vessel 395 

Importance  of  tliis  rule  and  the  consequence  of  its  violation 395 

1  )uty  of  prize-master  to  notify  the  admiralty  immediately  on  arrival 396 

And  to  deliver  up  papers  found  on  board  the  prize,  with  an  affidavit  that  they  are  in 

the  condition  in  which  they  were  found,  and  all  that  were  found 396 


TABLE   OF   CONTENTS.  XIX 

PAGE 

Prize  Commissioners. — Their  appointment,  powers,  and  duties 396 

To  take  possession  of  and  place  their  seals  upon  the  prize  property 397 

To  take  the  testimony  of  captain  and  officers  and  prize  crew 397 

Rules  as  to  examination  of  witnesses  in  preparatorio 397 

The  Prize  Libel. — Its  proper  form,  and  by  whom  filed 400 

Monition  and  warrant 401 

Service  and  monition 402 

Proceedings  on  the  return-day,  if  no  claim  be  filed 402 

The  Claim. — By  whom  filed 403 

The  test-affidavit  of  claimant 404 

Not  amendable,  as  of  course 404 

Papers  in  the  registry  not  examinable  until  after  claim  and  affidavit  filed 405 

Delivery  of  Property  on  Bail 405 

Never  allowed  before  a  hearing 405 

Appraisement  and  sale  of  property,  if  perishable,  the  rule  of  prize  courts 406 

The  Hearing. — In  the  first  instance,  exclusively  on  the  libel  and  claim — papers  found 

on  board — and  the  testimony  taken  in  preparatorio 4  06 

Consequence  of  sentence  of  condemnation 406 

Legal  presumptions  in  prize  courts,  and  the  burden  of  proof  resulting  therefrom 407 

The  national  character  of  prize  property  generally  the  principal  issue 408 

Question  of  national  character 109 

As  affected  by  domicile 409 

As  affected  by  trade 409 

As  afl'ected  by  the  ship's  flag  or  pass 41 0 

As  affected  by  transfer  of  ship  during  war 41 1 

Transfer  of  cargo  in  tranaitu 411 

Illegal  trade  affecting  proprietary  interest 411 

The  effect  of  violation  of  blockade 412 

"          contraband  trade 412 

"           trade  on  the  enemy's  coast 412 

'•          trade  with  the  enemy's  colonies 412 

"          resistance  to  search 41 2 

The  Decree  op  Condemnation 413 

Proceedings  thereon 413 

Captors  and  joint-captors 413 

Claim  of  joint-capture — when  to  be  filed 413 

Distributive  proportions 414 

Sale  and  distribution — where  no  appeal  and  no  claim  of  joint-capture 415 

Decree  op  Distribution • 415 

Decree  requisite  in  all  cases,  before  distribution 416 

Head-Money , 416 

Decree  of  Restitution,  on  recapture 419 

When  made — and  when  on  payment  of  salvage 419 

Military  Salvage. — Its  amount  in  the  United  States  fixed  by  statute 420 

Question  of  allowance  of  costs,  damages,  and  expenses,  on  decree  of  restitution 421 

How  determined 422 

How  costs,  damages,  and  expenses  ascertained 424 

Execution  of  decree 424 

Farther  Proof. — Order  for — when  made 426 

When  not  allowed 427 

What  testimony  allowed — when  farther  proof  ordered 428 

How  testimony  taken  on  such  order 428 

Judicial  Orders  pendente  lite 429 

Unlivery  of  cargo 429 

In  what  manner  effected 429 

Removal  of  ship  or  cargo,  or  both 430 

Expense  of  unlivery  or  removal — ^by  whom  borne 430 


XX  TABLE    OF   CONTENTS. 

PAGK 

Order  of  sale 430 

How  sale  effected  on  order 430 

Expense  of  sale — by  whom  defrayed 431 

Delivery  of  property  on  bail  to  captors  or  claimants 431 

Stipulations  and  liability  thereon 432 

Appeal  from  Decree 433 

Its  effect  on  the  possession  or  control  of  the  prize  property 433 

ADDENDA  TO  CHAPTEE  VI. 

further  coksideratiox  of  the  practice  and  proceedings  of  prize  courts,  sug- 
gested by  the  adjudications  upon  captures  made  during  the  existing  war 

in  the  united  states 435 

The  Duty  of  CaptOrs 436 

As  to  the  property  captured 436 

Exceptions  to  the  rule  requiring  it  to  be  sent  in  for  adjudication 436 

Physical  impossibility 436 

Exception  arising  from  moral  restraint 436 

Excuse  arising  from  the  necessity  of  the  captors 437 

Captured  property  taken  for  the  use  of  the  capturing  vessel  or  the  government,  must 

be  appraised  before  appropriation '  431 

The  amount  of  appraisal  deemed  to  be  in  the  treasury 438 

No  rule  requiring  its  payment  by  the  government  before  final  decree 438 

Duty  of  captors  as  to  the  persons  taken  with  the  captured  property 439 

General  rule  to  send  them  in  with  the  prize,  as  witnesses 439 

Overpowering  necessity  the  only  excuse  for  a  failure  to  comply  with  this  rule 439 

Captured  persons  not  to  be  separated  from,  but  to  be  sent  in  with  the  prize 440 

"Wliere  crew  of  captured  vessel  escape,  other  inculpatory  proof  allowed 441 

Personal  treatment  of  captured  persons 441 

Detained  as  witnesses,  not  as  prisoners  of  war 441 

Case  of  TM  Louisa  Agnes.     United  States  District  Court,  New  York >, . . .  442 

Duty  of  captors  as  to  vessel's  papers,  found  on  board  at  the  time  of  capture 449 

As  to  other  pajiers,  not  being  the  vessel's  papers 449 

Circular  of  instructions  in  this  respect  to  naval  commanders,  from  the  United  States 

Secretary  of  the  Navy 450 

Duties  of  TTnitcd  States  prize  commissioners  prior  to  recent  legislation 452 

Additional  duties  imposed  by  act  of  Congress 453 

Construction  of  the  act  by  United  States  Circuit  Court  for  the  Second  Circuit 453 

"Witnesses  to  be  examined  without  the  presence  of  counsel 455 

The  rule  as  to  the  general  character  of  the  averments  of  the  libel  and  the  claim,  sus- 
tained by  the  recent  decisions 455 

Delivery  TO  Claimants,  on  Bail 457 

Delivery  of  captured  property  to  claimants,  on  bail,  before  a  hearing,  subversive  of 

the  policy  and  purpose  of  maritime  capture 457 

Reasons  for  tlie  rule  of  non-delivery  still  more  cogent  after  hearing  and  condemnation  457 
The  doctrine  of  non-delivery  fully  sustained  by  the  decision  of  the  United  States  Dis- 
trict Court  of  Massachusetts 459 

Reasons  for  th*^  rulf  stated  in  the  case  of  The  Amy  Warwick 459 

Reasons  for  Die  rule  of  non-delivery  on  bail,  applicable  to  non-delivery  on  payment  of 

appraised  vahie > 460 

The  Captors  entitled  as  Distributees — How  determined 460 

New  rules  of  distribution  Vjy  recent  act  of  Congress 460 

Vessels  within  signal  distance  entitled  to  share 461 

Forfeiture  of  commander's  share  of  prize  money,  for  certain  neglect 461 

Armed  vessels  in  government  service  entitled  as  if  in  the  navy 462 

Merchant  vessels  making  captures  not  entitled,  in  strict  law — but  in  practice  a  share 

is  awarded  them  commensurate  with  the  meritorious  character  of  the  service 462 


TABLE    OF   CONTENTS.  XXI 

PAGE 

Decree  of  distribution.     How  required  to  be  rendered  by  the  act  of  March  25th,  1862  463 

And  how  and  where  the  same  is  to  be  executed 464 

Costs  and  Disbursements  in  Peize  Proceedings 464 

Character  of  the  costs  and  disbursements 464 

How  to  be  liquidated 464 

Embarrassments  resulting  from  the  want  of  an  appropriation  to  pay  the  necessary  ex- 
penses of  adjudication 465 

Attempted  remedy  by  statute  provision 465 

Reasons  for  such  construction  of  the  statute  as  shall  secure  the  remedy 465 

The  statute  otherwise  construed  by  th3  Circuit  Court  of  the  United  States,  in  the 

Second  Circuit,  in  the  cases  of  The  Sarah  Starr  and  The  Aigburth 461 

Incongruous  legislation  rendered  inoperative  a  subsequent  attempt  to  provide  a  remedy  469 


APPENDIX. 

No.  1. 
Letter  from  Sir  W.  Scott  and  Sir  J.  Nicholl  to  Mr.  J&j 471 

No.  2. 
Prize  rules 474 

No.  3. 
Standing  interrogatories  to  witnesses  examined  in  preparatorio 479 

No.  4. 

Statute  provisions  of  the  United  States  for  the  distribution  of  proceeds  of  prizes  when 
taken  by  public  armed  ships — Act  of  1800 484 

No.  5. 

Statute  provisions  of  the  United  States  for  the  distribution  of  proceeds  of  prizes  taken 
by  private  armed  vessels 485 

No.  6. 

The  several  proclamations  relating  to  the  civil  war  in  the  United  States 485 

No.  7. 
Distribution  of  prize  money — Act  of  Congress  of  1862 489 

No.  8. 
Department  circular  letters  of  instructions  to  naval  commanders 490 

No.  9. 
Proclamation  of  emancipation 493 


THE  LAW  OF  NATIONS 

AFFECTING  COMMERCE  DUPJNG  AVAR. 


-♦♦-♦-••»- 


War  defined. 


CHAPTER   I. 

Of  War  aistd  its  Declaration — ^and  herees^  ayho 
are  lawful  belligerents. 

Public  War  is  tliat  state  in  wliich  nations,  au- 
thorized by  tlie  sovereign  power,  prosecute  tlieir 
rights  by  force.^ 

"  It  is,"  says  Lord  Bacon,  "  one  of  the  highest 
trials  of  right ;  for,  as  princes  and  states  acknowl- 
edge no  superior  upon  earth,  they  put  themselves 
upon  the  justice  of  God  by  an  appeal  to  arms."^ 

An  appeal  of  so  momentous  a  nature,  invohang  ^j^^  ^ar-mak- 
the  right  of  judging  whether  a  nation  has  real  and  '^s  power, 
just  grounds  of  complaint ;  whether  she  is  author- 
ized-to  employ  force,  and  justifiable  in  taking  up 
arms;  whether  prudence  will  admit  of  -such  a 
coui^se ;  whether  the  welfare  of  the  nation  requires 
it,  and  cannot  otherwise  be  secured — can  be  made 
only  by  the  supreme  sovereign  power  of  the  state, 

■'  Grotius,  De  Jure,  Lib.   1.,  c.  i.,  §  2.     Albericus  Gentilus,  De 
Jure  Belli,  Lib.   L,  c.  ii.       Bynkershoek,  Quaest.  Jur.  Pub.,  Lib. 
L,  c.  i.     Vattel,  Lib.  IIL,  c.  i.,  §  1.     Hobbes,  De  Corpore  Politi- 
co, P.  I.,  c.  i.,  §  2.  .  ■ 
'  Bacon's  Works,  Vol.  IIL,  p.  40. 
1 


OF    WAR   AND   ITS    DECLARATION. 


whetlier  tliat  exist  in  king,  emj^eror,  or  congress,  as 
the  representative  of  the  body  of  the  nation. 

The  right  to  determine  the  question  of  the  ne- 
cessity of  an  appeal  to  force  for  the  prosecution  or 
recovery  of  a  national  right,  for  the  protection  of 
the  national  security  by  the  infliction  of  punish- 
ment as  an  atonement  for  a  national  injury,  or  as 
the  means  of  averting  a  threatened  danger  to  na- 
tional interests,  is  an  inseparable  incident  to  a  salu- 
tary government.  It  has  been  called  "  one  of  the 
rights  of  majesty."^ 

The  sovereign  power  of  the  state,  whether  the 
hereditary  or  elected  rei^resentative  of  the  peoj^le 
(who  constitute  the  state),  can  alone  be  the  author 
of  war.  By  that  order  it  is  invoked.  In  that  name 
it  is  conducted.  By  that  power  alone  armies  are 
The  war-mak-  enlisted,  and  navies  are  constructed  and  manned, 
mg  power.      ^^^  ^-^^  ^^^  humau   ao;encies  of   warfare   are  but 

instiTiments    in    the   hands   and   control   of    that 
power. 

"In  order  to  legalize  a  w^ar,  it  must  be  com- 
menced or  declared,"  says  Lord  Stowell,  "  by  that 
particular  branch  of  the  state  which  is  invested  by 
the  constitution  with  this  important  prerog^ive." 
"  If,"  says  Brooke,  "  all  the  people  of -England  would 
make  war  mth  the  king  of  Denmark,  and  the  king 
(that  is,  our  king)  will  not  consent  to  it,  this  is  not 
war.  " 

In  the  United  States,  the  power  of  declaring 
The  war-mak-  war,  as  wcll  as  that  of  raising  all  the  requisite 
thf  u.'^state^  means  and  supplies  for  its  prosecution,  1  )y  the  ex- 
vested  solely  pj-ggg  provisions  of  the  constitution  of  the  govern- 

'  '  Hazlitt's  and  Roche's  Manual  of  Maritime  War,  p.  2. 

^  Broolve's  Abridgment,  Tit.  Denizen. 


OF    WAR   AND    ITS    DECLAEATION.  3 

ment,  is  confided  exclusively  to  tlie  Conoi-ess  of  the  j?  *^^^  ^^'^^'"^ 

^    ■  JO  Congress. 

nation."^ 

This  right  of  majesty,  this  highest  attribute  of 
the  sovereignty  of  a  state,  and  ^\4thout  which  it 
must  of  necessity  cease  to  be  sovereign,  by  the 
positive  terms  of  the  wiitten  constitution,  ordained 
and  established  by  the  people  of  the  United  States, 
"  in  order  to  form  a  more  perfect  union"  than  that 
which  had  previously  existed  under  the  articles  of 
confederation  of  the  several  states — is  absolutely 
surrendered  by  the  several  states  (which,  by  their 
people,  in  convention  assembled,  adopted  and  rati- 
fied that  constitution)  into  the  hands  of  the  leg- 
islative department  of  the  national  government. 
Not  only  is  this  done  by  the  provision  referred  to, 
expressly  conferring  the  sovereign  power  upon  the 
federal  Congress,  which  would  necessarily  exclude 
the  idea  of  its  existence  elsewhere,^  but,  as  if  to 
guard  against  the  possibility  of  error,  resulting  fi-om 
the  hitherto  prevailing  sentiments  in  favor  of  the 
independent  sovereignty  of  the  several  states,  this 
right  of  majesty,  this  sine  qua  non  of  sovereign- 
ty, is  declared  to  be  shorn  from  the  several  states, 
l)y  the  most  positive  teiins  of  the  federal  constitu- 
tion. By  section  10  of  the  1st  article,  it  is  pro-  The  sovereign 
vided,  that  " no  state  shall  engage  in  war,  or  keep  SeJe^""  ^y^l^l 
troops  or  ships  of  war  in  time  of  peace,  or  enter  in-  seTcrai  states. 
to  any  agreement  or  compact  with  another  state  or 
with  a  foreign  power,"  or,  in  fact,  possess  the  power 
of  doing  any  of  those  things  which  are  essential  inci- 
dents of  the  war-making  power,  such  as  "  to  grant 
letters  of  marque  and  reprisal,  coin  money,  emit 
bills  of  credit,  make  any  thing  but  gold  and  silver 

'  Const,  of  U.  S.,  Art.  1,  S  8. 


4  OF    WAR    AND    ITS   DECLARATION. 

coin  a  tender  in  payment  of  debts,  or  pass  'any  "bill 
of  attainder,"  etc. 

The  dogma  of  indej^endeut  state  sovereignty  has 
been  adliered  to  with  a  pertinacity,  which  (in  view 
of  the  carefully  exj^ressed  and  unambiguous  pro- 
visions of  the  constitution  of  the  United  States,  re- 
quires no  ordinaiy  degree  of  charitable  forbear- 
ance to  designate  as  honest),  until  at  length  it  has 
brought  forth  its  legitimate  and  bitter  fruit,  in  a 
foolish,  and  vdcked,  and  causeless  rebellion  of  those 
states  whose  leaders  have  adopted  it,  and  which  can 
.  only  be  happily  terminated  by  the  utter  extinction 
of  this  j)ernicious  heresy. 

ra  ™n  ^onsw-  ^^  ^^^  carl}^  agcs  of  political  societies,  a  war  corn- 
ered requisite  menccd  without  a  solemn  declaration,  was  consid- 
ered infonnal  and  irregular,  and  contrary  to  the 
established  usage  of  nations.  It  was  so  regarded 
down  even  to  the  time  of  Grotius,  who,  admitting 
that  a  declaration  was  not  requii^ed  by  the  law  of 
nature,  declares,  nevertheless,  that  the  law  of  na- 
tions demands  it.^  The  Romans  granted  no  tri- 
umphs for  any  war  which  was  not  j^receded  by  a 
formal  declaration.  During  the  era  of  clnvalry, 
the  rules  of  which  required  the  fullest  notice  of 
intention  to  an  adversary,  that  he  might  have 
abundant  oj)portunity  to  prepare  for  his  defence, 
declarations  of  war  were  heralded  and  proclaimed 
with  the  greatest  solemnity,  and  clothed  with  all 
those  formalities  which  the  habits  of  knighthood 
had  carried  into  the  customs  of  general  warfare. 
Witli  the  decline  of  chivalry  such  declarations  were 
gradually  di^jcontinued,  although  Clarendon,  in  his 

■  Grotius,  De  Jure,  Lib.  III.,  c.  iii.,  §  6. 


DECLAEATIOlSr    OF   WAE.  5 

History  oi  tlie  Rebellion,  speaks  iu  terms  of  censure 
of  the  war  in  which  the  Duke  of  Buckingham  went 
to  France,  as  entered  into  "  without  so  much  as  the 
formality  of  a  declaration  by  the  king,  containing 
the  ground  and  provocation  and  end  of  it,  according 
to  custom  and  obligation  in  the  like  cases."^ 

Puifendorif,^  Vattel,^  Emerigon,*  each  contend  for 
the  necessity  of  a  public  declaration  before  the 
commencement  of  a  war,  as  required  not  only  by 
the  law  of  nations  but  by  justice  and  humanity ; 
and  the  former  holds  acts  of  hostility  not  preceded 
by  a  formal  declaration  of  war,  to  be  acts  of  piracy 
and  robbery.  Bynkershoek,^  however,  maintains 
that  the  law  of  nations  does  not  require  a  declara- 
tion of  war  to  precede  the  act,  and  cites  numerous 
precedents  to  sustain  his  position. 

Such  is  the  modern  doctrine,  and  the  well  settled  No  declaration 
practice  of  the  nations  of  Europe  as  well  as  of  the  the  existiug 

TT    'x    1   Oi   X  law  of  nations. 

United  fetates. 

"War,"  says  Lord  Stowell,  "  may  lawfully  exist 
without  a  declaration  on  either  side.  It  is  so  laid 
down  by  the  best  writers  on  the  law  of  nations."^ 

In  the  war  declared  by  the  United  States  against 
Great  Britain  in  1812,  hostilities  were  commenced 
by  the  United  States,  immediately  upon  the  pas- 
sage of  the  act  of  Congress,  and  without  waiting  to 
communicate  any  notice  of  intention  to  the  English 
governmeiit.  But  although  no  previous  declaration  proclamation 
of  intention  to  the  adversary,  be  reciuii'ed  as  a  ius-  y^'i"'"''^^.  ^^^ 

J '  J-  ^         information 

tification  of  hostilities,  yet  such  a  declaration,  by  ami  Kuidunce  _ 
public  act,  proclamation,  or  manifesto,  is  essentially  neutrals. 


'  Claren,   Hist.  Reb.,  Vol.   I.,  p.   40.     '  Book  VII..   c.  vi.,  §  9 
Book  III.,  c.  iv.,  §  51.     ^  Traite  des  Assurancts,  I.,  5G.3.    °  Quest 
Jar.  Pub.  Lib.  I.,  c.  ii.     ^  The  Eliza  Ann,  1  Dodson,  247. 


3 


6  DECLARATION    OF    WAE. 

necessary  for  tlie  instruction  and  direction  of  the 
citizen,  whose  individual  rights  are  materially 
affected,  as  the  direct  result  of  a  war  in  form. 
Without  such  a  declaration,  too,  it  w^ould  be  im- 
possible to  determine,  whether  the  rights  of  the  citi- 
zen are  impaired,  as  a  legitimate  effect  of  war,  and 
for  which  no  redi'ess  ►can  be  demanded  in  a  treaty 
of  peace,  or  whether  the  injuries  that  he  has  sus- 
tained are  such  as  to  demand  reparation. 

But  not  only  is  such  a  declaration  requisite  for 
the  information  and  direction  of  the  citizen,  but  it 
is  equally  necessaiy  for  the  instruction  of  the  citi- 
zens or  subjects  of  neutral  powers. 

The  knowledge  of  the  existence  of  hostilities  be- 
tween belligerents,  imposes  upon  neutrals  certain 
duties   and   oblio'ations,  the   strict    observance  of 
which  alone  entitles  them  to  that  j^rotection  in  per- 
son and  property,  which  is  accorded  to  those  who, 
in  time  of  war,  take  no  part  in  the  contest,  but  re- 
main common  friends  of  both  parties,  without  favor- 
ing the  aims  of  the  one  to  the  prejudice  of  the  other. 
In  the  United      By  the  coustitntiou  of  the  United  States,  wai- 
of'congresp^?s  cauiiot   la^^iiully  be  commenced  against  a  foreign 
'^^forntd  decL>  powcr,  A\dthout  au  act  of  the  Congress  of  the  nation, 
ration.  and  such  an  act  undoubtedly  operates  as  a  formal 

and  official  notice  to  all  the  world,  and  is,  of  itself, 
equivalent  to  the  most  solemn  and  formal  declara- 
tion.^ « 

"When  war  is  duly  declared,"  says  Chancellor 
Kent,^  "  it  is  not  merely  a  war  between  this  and  tlie 
adverse  government,  in  their  political  characters. 
Every  man  is,  in  judgment  of  law,  a  party  to  the 
acts  of  his  own  government,  and  a  Avar  between  the 

'  Ilaz.  <fc  Koch.  Mar.  Law,  8.    ^  Kent's  Com.,  Vol.  L,  p.  63. 


."7 


DECLAEATION    OF    WAR.  t 

governments  of  two  nations  is  a  war  between  all 
tlie  individuals  of  the  one,  and  all  the  individuals 
of  whicli  the  other  nation  is  composed.  Govern- 
ment is  the  representative  of  the  will  of  alj  the 
people,  and  acts  for  the  whole  society.  This  is  the 
theory  in  all  governments,  and  the  best  writers  on 
the  law  of  nations  concur  in  the  doctrine,  that  when 
the  sovereign  of  a  state  declares  war  against  another 
sovereign,  it  implies  that  the  whole  nation  declares 
war,  and  that  all  the  subjects  of  the  one  are  enemies 
to  all  the  subjects  of  the  other." 

Individual  inclinations,  prejudices,  or  partialities, 
must  l)e  subjected  to,  and  controlled  by,  the  deter- 
mination of  the  government.  The  practical  recog- 
nition of  this  principle  cannot,  with  safety,  be  dis- 
regarded by  the  citizen.^ 

Since  the  disuse  of  formal  declarations  of  war.  Legal  com- 
many  disputes  and  difficulties  have  arisen,  in  the  ho^Jtmtier 
adjustment  or  enforcement  of  individual  rights  or 
obligations,  fi'om  the  impossibility  of  determining 
the  precise  date  of  the  commencement  of  hostilities. 
Such  difficulties  are  obviated  by  the  constitutional 
provision  of  the  United  States  government,  which 
vests  the  war  making  power  in' the  Congress  alone. 
The  date  of  the  act  of  Congress,  thei'efore,  furnishes  By  statute 
the  precise  period  of  the  commencement  of  the  pe- 
culiar duties  and  obligations  which  a  condition  of 
war  imposes  on  the  citizen. 

"Modern  treaty  stipulations  between  the  several 
European  nations,  providing  that  "  a  rupture  of 
pacific  relations  shall  be  regarded  as  having  taken 

'  Lord  Stowell,  1  Robiuson,  118. 


8  WHO    AKE    LAWFUL    BELLIGEREIS^TS. 

place  at  the  date  of  recall  or  dismissal  of  the  re- 
spective ambassadors,"  have  sought  to  avoid  the 
embarrassments  resulting  from  the  absence  of  a  for- 
mal declaration.^ 


Who  are  law 
fill    bellis;er- 


Whether  any  other  than  sovereign  independent 
ents.  nations  at  war  with  each  other,  can  be  considered 

as  La^vful  Ijelligerents,  with  the  rights  and  privileges 
of  belligerent  j^owers,  seems  not  to  have  been  made 
a  subject  of  discussion  by  any  of  the  elementary 
writers  upon  the  law  of  nations. 
Importance  of      The  Qucstion  assuuies  no  inconsiderable  import- 

the  question  in  .  .  in-  •       ,     ,i 

connection  auco,  111  conucctiou  With  the  rebellion  against  the 
war'^in^the'u!  Constitutional  government  of  the  United  States  of 
States.  America,  which  has  arisen  among  the  people  in  the 

southern  portion  of  the  country,  who,  by  the  singu- 
lar forbearance  of  the  national  government,  have 
been  enabled  to  seize  the  unprotected  property  of 
the  nation,  consisting  of  forts,  arsenals,  mints,  cus- 
tom houses,  etc.,  erected  and  established  among 
them,  together  with  the  arms,  munitions  of  war, 
moneys,  etc.,  contained  therein;  and  having  ])re- 
tended  to  establish  an  independent  confederacy, 
mth  all  the  paraphernalia  of  a  sovereign  nation, 
have  levied  armies  to  oppose  the  aroused  determi- 
nation of  the  nation  to  crush  the  insurrection,  and 
have  issued  letters  of  marque  and  reprisal  as  a  law- 
ful belligerent,  by  means  of  which  to  inflict  a  blow 
upon  the  commerce  of  the  country,  ^vhich  almost 
exclusively  exists  in  that  portion,  which  remains 
loyal  to  the  constitutional  government. 

The  public  documents  directly  relating  to  this 

'  Dc  Marten's  Supp.,  vii.,  213  ;  id.  x.,  8/0  ;  id.  xi.,  471,  483,  613. 


WHO    AEE    LAWFUL    BELLIGEEElSfTS.  \) 

unnatural  and  wlioUy  unprovoked  and  causeless 
civil  conflict,  including  the  several  proclamations  of 
tlie  president  of  tlie  United  States,  and  of  tlie 
leader  of  tlie  insurrectionists,  calling  himself  .the 
president  of  the  Confederate  States,  together  with 
that  of  the  sovereign  of  Great  Britain,  etc.,  wdll  be 
found  in  the  appendix. 

The  lansruao-e  of  the  proclamation  of  the  British  Proclamation 

^  •    n  1  -IT-  .•         of  Great  Brit- 

queen,  especially  when    considered   m   connection  ain  rccogniz- 

with    that  used,  apparently  with    much   delibera- |f^fi[2^^^J'^f  ■ 

tion,  by  the  lords  who  speak  for  the  British  miii- Zionists  as  law- 

'       ^  ^  .    .  ful  bellio'er- 

istry,  seemed  to  leave  no  doubt  of  the  original  de-  euts. 
termination  of  the  British  government  to  regard  the 
persons  in  revolt  against  the  constituted  government 
of  the  United  States  as  lawful  belligerents^  and  to 
observe  a  strict  neutrality  between  them  and  the 
federal  government. 

The  naval  power  of  the  federal  government  being  i^-ffect  of  this 
quite  sufficient  to  effect  a  complete  blockade  of  all  nations. 
the  ports  of  the  rebel  territory,  this  2:)osition  on  the 
part  of  Great  Britain  would  assume  a  vast  |)rac- 
tical  importance,  inasmuch  as  it  would  oj)en  the 
British  ports,  wheresoever  situated,  as  a  shelter, 
asylum  and  protection  to  the  privateers  of  the 
rebel  community,  into  which  they  might  carry 
their  prizes  and  hold  them  in  safety,  to  await  a 
condemnation  of  a  court,  purporting  to  possess  the 
powers  of  admiralty  in  the  country  of  the  caj^tors. 

In  the  carefLilly  rehearsed  colloquy  upon  this  sub- 
ject in  the  British  Parliament,  the  distinguished 
lord  by  whom  it  was  specially  announced  as  the 
policy  of  the  British  government,  cited  as  a  prece- 
dent justifying  the  position,  the  recognition  of 
Greece  as  a  lawful  belligerent,  during  her  efforts 


10  WHO    AEE    LAWFUL    BELLIGEEENTS. 

to  become  independent  of  Turkey,  before  her  inde- 
pendence was  recognized  }jj  Great  Britain  or  any 
other  nation. 
Legislative  The  learned  lord  (John  Paissell),  by  consnltino- 

and  judicial        ,  i-\  •t-t-t  i         r>     i"" 

precedents  in  the  records  01  the  highest  judicial  tribunals  of  the 
states.^^  '"'^  United  States,  and  the  opinions  of  the  most  distin- 
guished jurist  w^ho  has  ever  adorned  the  American 
bench  (Chief- Justice  Marshall),  might  have  found 
precedents  much  more  to  his  purpose,  though  per- 
haps not  more  susceptible  of  being  distinguished 
from  the  case  presented  in  the  present  revolt  against 
the  integrity  of  the  United  States  government. 

One  Palmer  and  others  were  indicted  in  the  Cir- 
cuit Coui't  of  the  United  States  in  the  district  of 
Massachusetts,  for  an  alleged  robbery  and  piracy 
on  the  high  seas.  They  were  defended  as  lawful 
privateers,  acting  under  the  authority  and  commis- 
sion of  a  lawful  belligerent. 

Upon  a  division,  the  question  certified  for  the  de- 
termination of  the  Supreme  Court  of  the  United 
States  was  as  follows : — 

"  Whether  any  revolted  colony,  district  or  peo- 
ple, Avlio  have  thrown  off  their  allegiance  to  the 
mother  country,  but  have  never  been  acknowledged 
by  the  United  States  as  a  sovereign  and  independ- 
ent nation  or  power,  have  authority  to  issue  com- 
missions to  make  captures  on  the  high  seas,  of  the 
persons,  property,  and  vessels  of  the  subjects  of  the 
mother  country  who  retain  their  allegiance;  and 
whether  the  captures  made  under  such  commis- 
sions are,  as  to  the  United  States,  to  be  deemed 
lawful ;  and  whether  the  forcible  seizing,  Avith 
violence,  and  by  2:)utting  in  fear  of  the  persons  on 
board  of  the  vessels,  the  propertj^  of  the  subjects 


WHO   AEE   LAWFUL   BELLIGERENTS.  11 

of  tlie  mother  country  wlio  retain  their  allegiance, 
on  the  high  seas,  in  virtue  of  such  commissions,  is 
not  to  be  deemed  a  robbery  or  piracy  within  the 
act  of  Congress." 

Upon  this  question,  the  opinion  of  the  Supreme 
Court  of  the  United  States,  pronounced  by  Chief 
Justice  Marshall,  was  clear  and  explicit. 

"  When,"  says  he,  "  a  civil  war  rages  in  a  foreign 
nation,  one  part  of  which  separates  itself  from  the 
old  established  government  and  erects  itself  into  a 
new  and  distinct  government,  the  comiis  of  the 
Union  must  view  and  treat  the  newly  constituted 
government  as  it  is  viewed  by  the  legislative  and 
executive  departments  of  the  government  of  the 
United  States.  If  that  government  remain  neutral, 
but  recognizes  the  existence  of  civil  war,  the  courts 
of  the  Union  cannot  consider  as  criminal  those  acts 
of  hostility  which  are  authorized,  and  which  the 
new  government  may  dii'ect  against  its  enemy." 
"  The  government  of  the  United  States  having  re- 
cognized the  existence  of  the  civil  War  in  question, 
the  acts  of  the  defendants  were  justified  under  the 
commission  of  the  revolting  territory,  as  a  lawful 
belligerent,  and  were  in  no  manner  unla^vful  or  in 
violation  of  the  act  of  Congress."^ 

In  a  later  case,  in  which  the  same  question  arose, 
the  same  coui^t  says : 

"The  government  of  the  United  States  having 
recognized  tha  existence  of  civil  war  between  Spain 
and  her  cokuiies,  our  courts  are  bound  to  recognize 
as  lawful,  those  acts  which  war  authorize,  and  the 
new  government   in   South   America  may   direct. 

'  United  States  vs.  Palmer,  4  Curtis,  S.  C.  Decisions ;  3  Wheat, 
310 


12  WHO    AEE   LAWFUL   BELLIGEEENTS. 

Captures  made  under  tlieir  commissions  must  be 
treated  by  us  like  other  captures.  Tlieir  legality 
cannot  be  determined  in  our  courts  unless  made  in 
violation  of  our  acts  of  neutralit}^"^ 

And  in  a  still  later  case  in  tlie  same  court,  in 
wliicli  the  same  question  was  discussed  witli  great 
learning  and  ability  by  distinguislied  counsel,  the 
court  says:  "Another  objection  has  been  urged 
against  the  admission  of  this  vessel  to  the  privi- 
leges and  immunities  of  a  pul)lic  ship,  which  may 
as  well  be  disposed  of  in  connection  with  the  ques- 
tion already  considered.  It  is,  that  Buenos  Ayi-es 
has  not  yet  been  recognized  and  acknowledged  as 
a  sovereign,  iudej^endent  government  by  the  execu- 
tive or  legislature  of  the  United  States,  and  there- 
fore is  not  entitled  to  have  her  ships  of  war  recog- 
nized by  our  courts  as  national  ships. 

"  We  have,  in  former  cases,  repeatedly  had  occa- 
sion to  express  our  opinion  on  this  point.  The 
government  of  the  United  States  has  recognized 
the  existence  of  a  civil  war  between  Spain  and  her 
colonies,  and  has  avowed  a  determination  to  remain 
neutral  between  thq,  parties,  and  to  allow  to  each 
the  same  rights  of  asylum,  and  hospitality,  and  in- 
tercourse. Each  party  is  therefore  deemed  by  us  a 
belligerent  nation,  having,  so  far  as  concerns  us,  the 
sovereign  rights  of  war,  and  entitled  to  be  respect- 
ed in  the  exercise  of  those  rio:lits.  We  cannot  in- 
terfere,  to  the  prejudice  of  either  belligerent,  with- 
out making  ourselves  a  I3arty  to  the  contest,  and 
departing  from  the  position  of  neutrality.  All  cap- 
tures made  by  each  must  be  considered  as  having 

^  The  Divina  Pastor,  4  Curtis,  S.  C.  Decisions,  345  ;  4  Wheat. 
62. 


WHO    AEE    LAWFUL    BELLIGERENTS.  IH 

the  same  validity;  and  all  tlie  immunities  wliicli 
may  be  claimed  by  public  ships  in  our  ports,  under 
the  law  of  nations,  must  be  considered  as  equally 
the  rig-ht  of  each,  and  as  such,  must  be  recoo-nized 
by  our  courts  of  justice  until  Congi'ess  shall  pre- 
scribe a  diiferent  rule.  This  is  the  doctrine  hereto- 
fore asserted  by  this  court,  and  we  see  no  reason  to 
depart  from  it."^ 

Thus  it  will  be  seen,  that  so  far  as  mere  precedent 
is  concerned,  considered  apart  from  the  circum-stan- 
ces  toliich  induced  it^  that  which  has  l)een  estab- 
lished by  the  government,  and  enforced  by  the  ju- 
diciary of  the  United  States,  might  sustain  the 
position  taken  by  Great  Britain. 

But  though  such  a  precedent,  of  the  recognition  Legislative 

/.  -1,.  -i  if»iiiT  ,  precedents  of 

of  a  revoitmg  people  as  lawiul  belligerents,  were  no  binding 
a  sufficient  justification  of  the  course  pursued  by  ^"^^^o^^y- 
Great  Britain  toward  the  nation  by  which  the  prec- 
edent was  established,  it  is  not  here  pretended,  that 
such,  or  any  number  of  precedents,  could  impose 
an  imperative  law  of  action  upon  nations,  or  that 
Great  Britain,  under  the  existino;  circumstances, 
would  not  be  entirely  justified  in  the  eyes  of  the 
ci^^lized  world,  in  a  de23aii;ure  from  such  a  prece- 
dent. 

The  annals  of  the  world  furnish  no  j^arallel  to  the  iiie  rebellion 
present  atrocious  combination  to  overthrow  the  con-  government  of 
stitutional  p'ovemment  of  the  United  States.    In  all  *'^®  ^-  states 

,.,^  -,,  ,  bemg  wliollj 

those  cases  to  which  reference  has  been  made,  and  unprecedented 

-\       -\     •  •       I  T     1    •       1  •   j_  /.       in  all  its  cir- 

mdeed,  m  every  instance  recorded  m  history,  oi  a  cumstances  in 
people  revolting  against  a  government  of  which  it  nations^no'  "^ 
forms  a  part  where  the  revolt  has  assumed  proper-  Jsting  prece- 

^    The  Santissima  Trinidad,  5  Curtis,  S.  C.  Decisions,  268*; 
7  Wheat.  283. 


14  "S^-HO    ARE   LAWFUL    BELLIGERENTS. 

dent  can  indi-  tions  eutitlina:  it  to  be  reg:arded  as  sometliinp'  otlier 

cate  the  obli-  ^    .  =>.  n         t    i      -,     ^ 

[jationof  na-   tJian  the  transient  aberrations  of  a  deluded  mob, 

tions  to  ac-       ii  i  •   x     i      •  j.  r»  i 

knowledge  the  tiiere  nave  existed  CKCumstances,  or  more  or  less 
revoiters  as     siOTiificance,  wliicli  commended  the   revolt  to  the 

lawful  beUig-        t^  ^      ? 

ents.  sympathies  of  Christian  nations. 

The  impartial  reader  of  history  will  seek  in  vain 
for  the  record  of  such  a  revolt,  that  may  not  fairly 
be  referred  to  some  direct,  pressing,  urgent  cause, 
or,  at  least,  in  which  the  leading  spirits  of  the  move- 
ment were  not  themselves  in  perfect  accordance,  in 
their  assignment  of  the  reasons  which  impelled  them 
to  resistance.  But  in  this  unnatural  rebellion,  against 
as  mild,  and  benignant,  and  beneficent  a  govern- 
ment as  ever  existed  upon  earth,  is  presented  the 
extraordinary  spectacle  of  grave  and  apparently 
well-considered  public  documents,  prepared  for  sub- 
mission to  the  judgment  of  the  world,  emanating 
from  the  two  prominent  conspirators  in  the  revolt — 
one  calling  himself  the  president,  and  the  other  the 
vice-president  of  the  Confederate  States — in  which 
each  sets  forth  elaborately  what  he  considers  the 
aggregation  of  causes  which  have  induced  the  at- 
tempt to  overthrow  the  government,  so  utterly  dis- 
cordant, so  diametrically  differing,  each  from  the 
other,  that  one  who  should,  for  the  first  time,  read 
the  manifestos,  without  any  previous  information 
of  current  events,  might  suppose  them  to  refer  to 
different  nations  and  a  different  people. 

It  is  quite  safe  to  declare  that  rebellion  to  be 
causeless,  in  which  it  is  scarcely  possible  to  find  any 
two  prominent  insurrectionists  agreeing  in  their  as- 
signment of  the  causes  wl.d.ch  have  produced  it. 

It  is.  quite  safe  to  declare  that  rebellion  to  be 
causeless,  that  is  raised  against  a  government,  which, 


WHO    AEE    LAWFUL    BELLIGERENTS.  15 

from  its  conunencement,  to  the  dawn  of  revolt,  has 
been  controlled  and  administered,  in  all  its  depart- 
ments, in  the  interests  of  those  by  whom  the  rebel- 
lion has  been  incited.  And  it  is  quite  safe  to  de- 
clare that  rebellion  to  be  causeless  which  has  no  other 
avowed  basis  than  a  pretended  apprehension  of  a 
future  indisposition  of  the  government  to  protect 
the  peculiar  rights  in  the  peculiar  property  of  the 
i*evolting  people — which,  if  successful,  can  have  no 
other  end  than  to  leave  those  rights  so  utterly  with- 
out all  protection,  that  their  eventual  annihilation 
would  be  inevitable. 

Revolting  people  of  other  nations  have  risen  to 
throw  off  the  yoke  of  the  oppressor^r-to  free  them- 
selves from  an  odious  thraldom — to  cast  away  the 
burdens  heaped  upon  them  by  an  iron  despotism, 
and  to  go  forth  an  independent  people.  Never  be- 
fore, in  the  world's  history,  was  a  rebellion  against  a 
constituted  government  resorted  to  with  the  avowed 
and  sole  purpose  and  ol)ject  of  encouraging,  pro- 
tecting, extending,  and  perpetuating  human  slavery, 
and  making  the  perpetual  bondage  of  a  race  the 
chief  corner-stone  of  the  social  and  political  fabric. 

Considerations  such  as  these,  might  well  have 
justified  Great  Britain  in  declaring  that  such  re- 
cognitions of  a  revolted  people  as  lawful  belliger- 
ents, which  have  hitherto  been  made  by  nations, 
before  their  independence  was  acknowledged,  fur- 
nish no  Drecedent  for  a  case  like  this. 


16 


LEGAL    OBLIGATIOJS^S    OF   BELLIGEEENTS. 


CHAPTER  11. 

Or  THE  Legal  OBLiGAnoisre  of  Belligeeents  and 
.      THEIR  Allies. 


W&T  termin- 
ates commerce 
between  bel- 
ligerents. 


The  founda- 
tion of  this 
doctrine. 


The  existence  of  war  between  nations  immediate- 
ly terminates  all  legal  commercial  intercourse  be- 
tween their  citizens  or  subjects.  This  principle  is 
of  a  character  so  obviously  just,  resulting  fi'om  the 
very  nature  of  war  itself,  and  having  its  source  in 
that  natural  reason  and  natural  justice  which  are 
alike  binding  on  the  whole  community  of  the  civil- 
ized world,  that  all  the  great  writers  who  have 
treated  of  the  law  of  nations  have  assumed  if^as  in- 
controvertible.^ There  is  no  such  thing,  as  has  been 
justly  said,  as  a  war  for  arms  and  a  peace  for  com- 
merce. The  existence  of  war  places  each  individual 
citizen  of  the  respective  belligerent  nations  in  a  con- 
dition of  common  hostility.  By  it,  all  treaties,  all 
civil  contracts,  all  rights  of  property,  are  terminated 
or  suspended.  Its  existence  confers  the  power,  if  it 
does  not  impose  the  duty,  on  every  citizen  to  attack 

'  Grolius,  Lib.  III.,  c.  iv.,  §  8  ;  Bynkershoclc,  Lib.  I.,  c.  iii. ;  Vat- 
tcl,  Lib.  Ill,  c.  iv. ;  Yalin,  Lib.  Ill,  Tit.  6,  Art.  3. 


COMMEECE    SUSPENDED :  HE    AUTHOEITIES.  17 

the  enemy  and  seize  Ms  property,  tliougli,  by  estab- 
lished custom,  this  right  is  restricted  to  such  only, 
as  are  the  commissioned  iusti-uments  of  the  gov- 
ernment for  such  purpose. 

Trade  and  commerce  presuppose  the  existence  of 
civil  contracts  and  business  relations,  and  a  re- 
course to  judicial  tribunals ;  and  this  is  necessarily 
incompatible  with  d  state  of  war. 

Trade  and  commerce,  by  enriching  the  merchants 
of  the  enemy,  and  thus  enabling  them  to  contribute 
to  the  support  of  their  government,  as  well  as  by 
replenishing  the  treasury  of  the  enemy  by  the  i^ny- 
ment  of  export  duties  upon  the  merchandise  brought 
from  his  country,  operate  directly  to  aid  and  assist 
the  enemy,  by  furnishing  him  witli  the  very  sinews 
of  war. 

Besides,  any  individual  profit  or  advantage  which 
might  accrue  from  the  continuance  of  commercial 
intercourse,  is  far  outweighed  by  a  consideration  of 
the  public  welfare,  which  requires  a  cessation  of 
the  extraordinary  facilities  which  it  affords,  of  con- 
ducting a  traitorous  correspondence  with  the  ene- 
my, and  of  conveying  intelligence  that  the  pul)l4C 
safety  demands  should  be  withheld. 

A  review  of  the  English  and  American  authori-  Review  of 
ties,  and  the  luminous  and  learned  commentaries  of  100^00  tiie"'' 
Sir  William  Scott  (Lord  Stowell)  and  of  Mr.  Jus-  '"^'J*"'*- 
tice  Story,  illustrating  the  true  character  and  ex- 
tent of  the  principle  by  which  all  commercial  inter- 
course is  interdicted  between  belligerents,  and  of 
the  circumstances  under  whicli  it  has  been  applied 
and  enforced,  cannot  fail  to  be  instructive,  as  well 
to  the  statesman  and  lawyer,  as  the  merchtwt. 

The  leading  English   cases  are,  ''The  Hoop''  (1 
2 


18  COMJIEECE   SUSPEIS^DED THE   AUTHOEITIES. 

Robinson,  196)  and  ''jPoUsys.  Bell  et  ahr  (8  Term 
Rep,  548).  In  the  case  of  "  The  Hoop^''  it  appear- 
ed that  Mr.  Malcohu  of  Glasgow,  and  other  r.ier- 
chants  of  Scotland,  had  traded  with  Holland,  for 
articles  necessary  for  the  agriculture  and  manufac- 
tures of  Scotland.  They  had  several  times  applied 
for,  and  procured,  the  king's  license  for  this  trade 
during  the  war ;  but,  after  the  passing  of  certain 
acts  of  Parliament,  being  erroneously  informed  by 
the  commissioners  of  the  customs  at  Glaso'ow,  that 
such  licenses  were  no  longer  necessary,  they  omitted 
to  procure  one  upon  the  occasion  in  question,  and, 
in  consequence  of  this,  the  cargo  being  taken,  was 
condemned  as  prize. 

The  case  of  "  Potts  vs.  Bell  et  alsr  was  upon  a 
policy  of  insurance  effected  by  the  plaintiff^  a  Brit- 
ish subject,  upon  goods  purchased  by  him  from  the 
enemy,  during  hostilities,  and  shi2:)ped  from  the  en- 
emy's country  on  board  a  neutral  shij).  The  policy 
was  held  to  be  illegal  and  void. 

"There  exists,"  says  Lord  Stowell,  "a  general 
rale  in  the  maritime  juiisprudence  of  this  country, 
by  which  all  trading  with  the  public  enemy,  unless 
with  the  permission  of  the  sovereign,  is  interdicted. 
It  is  not  a  principle  peculiar  to  the  maritime  law 
of  this  country ;  it  is  laid  down  by  Bynkershoek,  as 
a.  universal  principle  of  the  law.  Ex  natura  belli 
commercia  inter  liostes  cessare^  non  est  disputandum. 
He  proceeds  to  observe : 

"  The  interests  of  trade,  and  the  necessity  of  0I3- 
taining  certain  commodities,  have  sometimes  so  far 
overpowered  this  rule,  that  different  species  of  traf- 
fic have  been  permitted,  but  it  is,  in  all  cases,  the 
act  and  permission  of  the  sovereign  (Bynk.  6,  1  ( 


COMMERCE   SUSPENDED THE    AUTHORITIES.  19 

3).  Wherever  that  is  permitted,  it  is  a  suspensiou 
of  the  state  of  Avar,  quoad  hoc.  It  is,  as  he  ex- 
presses il^pro  jparte  -sic  helium^  pro  parte  pax  inter 
suhditos  utriusque  principisr 

"  By  the  law  and  constitution  of  this  country,  the 
sovereign  alone  has  the  power  of  declaring  war  and 
peace.  He  alone,  therefore,  who  has  the  power  of 
entirely  remoAdng  the  state  of  war,  has  the  power 
of  removing  it  in  part,  by  permitting,  where  he  sees 
proper,  that  commercial  intercourse  which  is  a  par- 
tial suspension  of  the  war.  There  may  be  occa- 
sions on  which  such  an  intercourse  would  be  highly 
expedient,  but  it  is  not  for  individuals  to  determine 
on  the  expediency  of  such  occasions,  on  theii'  own 
notions  of  commerce,  and  of  commerce  merely,  and 
possibly  on  grounds  of  private  advantage,  not  very 
reconcilable  with  the  general  interests  of  the  state. 
It  is  for  the  state  alone,  on  more  enlarged  views  of 
policy,  and  of  all  circumstances  that  may  be  con- 
nected with  such  an  intercourse,  to  determine  when 
it  shall  be  permitted,  and  under  what  regulations. 
In  my  opinion,  no  principle  ought  to  be  held  more 
sacred  than  that  this  intercourse  cannot  subsist  on 
any  other  footing  than  that  of  the  direct  permission 
of  the  state.  Who  can  be  insensible  to  the  conse- 
quences that  might  follow,  if  every  person  in  time 
of  war  had  a  right  to  carry  on  a  commercial  inter- 
•  course  with  the  enemy,  and  under  color  of  that,  had 
the  means  of  carrying  on  any  other  species  of  inter- 
coui'se  he  might  think  fit  ?  The  inconvenience  to 
the  public  might  be  extreme,  and  where  is  the  in- 
convenience on  the  other  side,  that  the  merchant 
should  be  compelled,  in  such  a  situation  of  the  two 
countries,  to  carry  on  his  trade  between  them  (if 


20  COMMERCE    SUSPENDED. 

necessary)  under  tlie  eye  and  control  of  tlie  goverD 
ment,  charged  Avitli  the  care  of  the  public  safety  ? 
Contracts       Auotlicr  principle  of  law  of  a  less  politic  nature, 

suspended  be-  t.  -,1  -,    ,       . .  ,.  it,- 

tween  beiiig-    out  equally  general  m  its  reception  and  direct  in 
erents.  ^^g  application,  forbids  this  sort  of  communication, 

as  fundamentally  inconsistent  Avith  the  relation  at 
that  time  existing  between  the  two  countries,  and 
Courts  closed  that  is,  the  total  inability  to  sustain  any  contract 
enforcement  ^^  ^^  appeal  to  the  tribunals  of  the  one  country  on 
the  part  of  the  subjects  of  the  other.  In  the  law  of 
almost  every  country,  the  character  of  alien  enemy 
carries  with  it  a  disability  to  sue,  or  to  sustain,  in 
the  language  of  the  civilians,  a  persona  standi  in 
judicis.  The  peculiar  law  of  our  own  country  ap- 
plies this  principle  with  great  rigor. 

"The  same  principle  is  received  in  our  courts  of 
the  law  of  nations.  They  are  so  far  British  courts 
that  no  man  can  sue  therein,  who  is  a  subject  of  the 
enemy,  unless  under  particular  circumstances,  that, 
pro  liac  vice,  discharge  him  from  the  character  of 
an  enemy,  such  as  his  coming  under  a  flag  of  truce, 
a  cartel,  a  pass,  or  some  other  act  of  public  au- 
thority, that  puts  him  in  the  king's  peace,  p7'o  Jiac 
vice.  But  otherwise  he  is  totally  ex  lex.  Even  in 
the  case  of  ransoms,  which  were  contracts,  but  con- 
tracts ex  jure  helli,  and  tolcrjited  as  such,  the  enemy 
was  not  permitted  to  sue  in  his  own  proper  person, 
for  the  payment  of  the  ransom  bill,  but  the  pay- 
ment was  enforced  by  an  action  brought  by  the  im- 
prisoned hostage  in  the  courts  of  his  own  country,  for 
the  recovery  of  his  fi-eedom.  A  state  in  which  con- 
tracts cannot  be  enforced,  cannot  be  a  state  of  legal 
commerce.  If  the  parties  who  are  to  contract  have 
no  light  to  compel  the  performance  of  the  contract, 


COMIVIEECE    SUSPENDED.  21 

nor  even  to  ~  aj^pear  in  a  court  of  justice  for  that 
purpose,  can  there  be  a  stronger  proof  tliat  tlie  law 
imposes  j  ^  gal  disaLility  to  contract  ?  To  such 
transactions  it  gives  no  sanction.  They  have  no 
leo-al  existence,  and  the  whole  of  such  commerce  is 
attempted  without  its  protection  and  against  its  au- 
thority. Bynkershoek  expresses  himself  with  great 
force  upon  this  argument,  in  his  first  book,  chapter ' 
7,  where  he  lays  down,  that  the  legality  of  com- 
merce, and  the  natural  use  of  courts  of  justice,  are 
inseparable.  He  says  that  cases  of  commerce  ai-e 
undistinguishable  from  cases  of  any  other  species, 
in  this  respect.  Si  ho-sti  semel  permitta-s  actiones 
exercere^  difficile  est  distingiiere,  ex  qua  causa  orian- 
tw\  nee  potui  animadvertere  illam  distinctionem 
unquam  usu  fiiisse  serva tarn. 

"  Upon  these,  and  similar  grounds,  it  has  been 
the  established  rule  of  the  law  of  this  court,  con- 
firmed by  the  judgment  of  the  Supreme  Court,  that 
a  trading  with  the  enemy,  except  under  a  royal 
license,  subjects  the  property  to  confiscation,  and 
the  most  eminent  persons  of  the  law,  sitting  in  the 
supreme  courts,  have  uniformly  sustained  such 
judgments. 

"  In  all  cases  of  this  kind  which  have  come  be- 
fore this  tribunal,  they  have  received  a  uniform  de- 
termination.    The  cases  which  I  have   produced, 
prove  that  the  rule  has  been  rigidly  enforced  where 
acts   of   Parliament  have,    on   different   occasions, 
been  made  to  relax  the  ua-vdsration  law  and  otlier  Relaxation  of 
re venue  acts,  wiiere  the  government  has  authorized,  pension  of 
under  the  sanction  of  an  act  of  Parliament,  a  home-  particular  ^^ 
ward  trade  from  the  enemy's  possessions,  but  has  °^^^- 
not  specifically  protecte  !  an  outw;  r  !  trade  to  the 


22  COMMEECE   SUSPENDED. 

same,  tliougli  iDtimately  connected  witli  tliat  liome- 
warcl  trade,  and  almost  necessary  to  its  existence ; 
that  it  has  been  enforced  where  strong  claim,  not 
merely  of  convenience,  l)ut  almost  of  necessity,  ex- 
cused it  on  behalf  of  the  individual ;  that  it  has  been 
enforced  where  cargoes  have  been  laden  before  the 
war,  but  where  the  parties  have  not  used  all  ]3ossi- 
ble  diligence  to  countermand  the  voyage  after  the 
first  notice' of  hostilities,  and  that  it  has  been  en- 
forced not  only  against  the  subjects  of  the  crown, 
but  likewise  against  those  of  its  allies  in  the, war, 
upon  the  supposition  that  the  rule  was  founded  on 
a  strong  and  universal  principle,  Avhich  allied  states 
in  war  had  a  right  to  notice  and  appl)^  mutually  to 
each  other's  subjects.  Indeed,  it  is  the  less  neces- 
sary to  produce  these  cases,  because  it  is  expressly 
laid  down  by  Lord  Mansfield  that  such  is  the  mari- 
time law  of  England."^ 

The  rigid  interdiction  of  commercial  intercourse 
between  belligerents  has,  in  England,  been  earned 
to  the  extent  of  prohibiting  the  remittance  of  sup- 
plies to  a  British  colony,  while  it  was  under  the 
temporary  subjection  of  the  enemy.  Grenada,  a 
British  possession,  had  been  seized  by  the  I^rench, 
•  but  by  the  ])ul>lic  enactments,  both  of  France  and 
Great  Britain,  the  island  was  not  considered  to  have 
entirely  lost  its  national  character — for  French  or- 
dinances had  been  made  reffardino-  it,  inconsistent 
with  its  being  considered  a  strictly  French  posses- 
sion ;  and  it  had  been  enacted  by  the  British  Parlia- 
ment, for  the  expressed  purpose  of  giving  relief  to 
the  proprietors  of  estates  there,  that  no  goods  of 

'  Gist.  vs.  Mason,  1  T.  R.  86. 


COMMERCE    SUSPENDED. 


23 


tlie  produce  of  Grenada,  on  board  of  neutral  ves- 
sels, going  to  neutral  ports,  should  be  liable  to  con- 
demnation as  prize. 

Notwithstanding  these  legislative  declarations, 
that  the  character  of  Grenada  was  not  to  be  regard- 
ed as  strictly  hostile,  and  notwithstanding  the  ex- 
press permission  to  export  the  productions  of  the 
island,  a  neutral  vessel  sent  from  England  with 
goods  to  be  imported  into  Grenada,  was  seized,  as 
en2:ao'ed  in  unlawful  intercourse  with  the  enemy, 
and  condemned  in  the  vice-admiralty  court  of  Bar- 
badoes.  The  sentence  of  condemnation  was  con- 
firmed upon  appeal  to  the  privy  council.^ 

A  similar  strictness  has  been  adopted,  in  the  ap-  strictness  of 
plication  of  the  principle,  by  the  courts  of  admir- ™^^^  ^^^/^"^^^J-^ 
altv  of  the  United  States.     An  American  citizen  of  the  United 

•^  ...  .  .       states. 

had  purchased  goods  in  a  British  possession,  prior 
to  the  commencement  of  hostilities  between  the  two 
countries,  and  had  deposited  them  on  an  island  near 
the  frontier.  After  the  breaking  out  of  hostilities, 
he  chartered  a  vessel  to  jproceed  to  the  island  and 
carry  his  merchandise  to  a  port  in  the  United 
States.  On  her  return  with  the  cargo,  the  vessel 
was  captured,  and  vessel  and  cargo  were  con- 
demned.^ 

Upon  the  confirmation  of  the  judgment  of  con- 
demnation, on  appeal  to  the  Supreme  Court,  the 
entire  recognition  of,  the  ]:»rinciple  of  commercial 
non-intercoui'se  between  belligerents  is  thus  clearly 
expressed. 

"  Whatever  relaxations  of  the  strict  rights  of  war 
have  been  established  by  the  more  mild  and  miti- 

'  The  Bella  Gwdita,  1  Rob.,  207. 
*  The  Rapid,  8  Cratich,  155. 


24  COMMERCE    SUSPENDED. 

gated  practice  of  modern  times,  tliere  has  been  none 

on  this  subject.    The  universal  sense  of  nations  has 

acknowledged  the  demoralizing  effects  that  would 

result  from  the  admission  of  individual  intercourse 

Necessity  for  between  the  states  at  war.     The  whole  nation  is 

forcement^of    embarked  in  one  common  bottom,  and  must  be  re- 

theniie.  coucilcd  to  ouc  couimon  fate.     Every  individual  of 

the  one  nation,  must  acknowledge  every  individual 

of  the  otlier  nation,  as  his  own  enemy,  because  he 

is  the  enemy  of  his  country.     It  is  no  excuse  for 

such  trading  with  the  enemy,  that  the  property  was 

purchased  before  the  war — much  less  that  the  goods 

only,  and  not  the  j)urchase,  existed  before  the  war, 

in  the  enemy's  country." 

In  numerous  other  cases  in  the  American  courts 
the  same  principle  has  been  invoked  and  applied 
with  uniform  strictness.^ 

In  the  case  of  The  Lord  Wellington^  2  GalHson, 
103,  an  American  vessel  received  a  carffo  from  on 

Penalty  of  vlo-  '  ,        ,  .  ,  ,  ^ 

lation  of  the  Doard  au  cncmy  s  ship,  under  the  pretence  ot  ran- 
som. After  she  had  discharged  her  cargo,  and  upon 
her  return  voyage,  she  was  seized  and  condemned 
as  lawful  prize  of  war,  as  having  been  engaged  in 
inilawful  commerce  with  the  enemy. 

In  the  case  of  The  Alexander^  8  Cranch,  169,  a 
ship,  owned  by  citizens  of  the  United  States,  was 
captured  by  the  enemy,  taken  into  the  enemy's  port, 
and  there,  upon  the  hearing  of  the  libel,  she  was 
discharged,  upon  its  being  made  to  appear  that  she 
was  sailing  under  an  enemy's  license.  A  cargo  was 
then  purchased  antl  laden  on  board  of  her  in  the 

'  The  Laiorence,  1  (jlallison,  470  ;  The  Alexander^  ib.,  532  ;  The 
Mary,  ib.,  G20  ;   The  Joseph,  ib.,  540  ;   The  Lord  Wi'llinr/to7i,  -2  ib., 

103. 

I, 


COMJVIEKCE   SUSPENDED.  25 

enemy's  country,  and  on  her  voyage  home  she  was 
captured.  She  was  condemned  as  having  been  en- 
o-aged  in  an  illicit  trading  with  the  enemy. 

In  the  case  of  ships  sent  on  errands  of  humanity  Truce  or  cartel 
in  time  of  war,  called  truce  or  cartel  ships,  the  rule  ^  ^^ 
of  commercial  non-intercourse  is  enforced  with  pe- 
culiar sternness.  The  Venus  was  a  British  vessel, 
which  had  gone  to  Marseilles,  under  cartel,  for  the 
exchange  of  prisoners.  While  there,  a  cargo  was 
laden  on  board,  and  on  her  voyage  thence  to  Poii: 
Mahon,  she  was  stranded  and  captured.  Upon  a 
full  view  of  all  the  circumstances  of  the  case,  judg- 
ment of  condemnation  ^vas  j)assed  against  her  by 
Lord  Stowell.  "  The  conduct  of  ships  of  this  de- 
scription," he  says,  "  cannot  be  too  narrowly  watch- 
ed. The  service  on  which  they  are  sent  is  so  highly 
important  to  the  interests  of  humanity,  that  it  is 
peculiarly  incumbent  upon  all  parties  to  take  care 
that  it  should  be  conducted  in  such  manner  as  not 
to  become  a  subject  of  jealousy  and  distrust  be- 
tween the  two  nations." 

Again,  and  in  another  case  of  a  like  character. 
Lord  Stowell  says :  "  The  employment  to  which  the 
privilege  of  cartel  is  allow^ed,  is  of  a  very  peculiar 
nature.  It  is  a  mode  of  intercourse  between  hos- 
tile nations,  invented  for  the  purpose  of  alleviating, 
in  some  degree,  the  calamities  of  war,  by  restoring 
to  their  liberty  those  individuals  who  may  happen 
to  have  fallen  into  a  state  of  captivity.  It  is  the 
mutual  exchange  of  prisoners  of  war,  and  therefore, 
properly  speaking,  it  can  have  place  beirween  bel- 
ligerents only."  "  It  is  not  a  question  of  gain,  but 
one  on  which  depends  the  recoveiy  of  the  liberty* 
of  individuals  who  may  happen  to  have  become 


26  COMMEECE   SUSPENDED. 

prisoners  of  war ;  it  is,  therefore,  a  species  of  navi- 
gation wliicli,  on  every  consideration  of  Lumanity 
and  policy,  must  be  conducted  with  the  most  exact 
attention  to  the  original  purpose,  and  to  the  rules 
which  have  been  built  upon  it ;  since,  if  such  a 
mode  of  intercourse  is  broken  off,  it  cannot  but  be 
followed  by  consequences  extremely  calamitous  to 
individuals  of  both  countries."  "  Cartel  ships  are 
subject  to  a  double  obligation  to  both  countries,  not 
to  trade.  To  engage  in  trade  may  be  disadvanta- 
geous to  the  enemy,  or  to  their  own  country.  Both 
are  mutually  engaged  to  permit  no  trade  to  be  car- 
ried on  under  a  fraudulent  use  of  this  intercourse. 
All  trade  must  therefore  be  held  to  be  prohibited, 
and  it  is  not  without  the  consent  of  both  govern- 
ments, that  vessels  engaged  in  that  service  can  be 
permitted  to  take  in  any  goods  whatever.'" 

If  a  ship  be  really  and  in  good  faith  going  as  a 
cartel,  on  a  voyage  for  the  purpose  of  bringing  pris- 
oners, she  will  be  protected  from  condemnation, 
even  although  she  is  without  a  regular  certificate 
of  cartel ;  and  this  protection  extends  to  the  return 
voyage.^ 

M'hile  the  rule  of  prohibition  of  commercial  in- 
tercourse between  belligerents  is  applied  with  the 
utmost  rigor  to  cartel  ships,  yet,  in  the  interests  of 
humanity,  their  emj)loyment  for  the  legitimate  pur- 
pose of  cartel  is  encouraged  and  protected. 

Contracts  made  for  their  equipment  and  supply 
are  considered  as  contracts  between '  friends,  and 

•  The  Rose  in  Bloom,  Dodson,   GO ;   The  Caroline  Verhage,  6 
•  Rob.,  3:36. 

«  The  Diafjie,  3  Rob.,  139;  La  Gloire,  5  Rob.,  192. 


COMMEECE   SUSPElsTDED.  37 

consequently  are  enforced  in  tlie  judicial  tribunals 
of  either  hellio^erent.  Such  vessels  are  reo^arded  as 
licensed  neutrals,  and  all  persons  connected  with 
their  navigation,  in  the  particular  service  in  which 
both  belligerents  have  employed  her,  are  neutral 
in  respect  of  both,  and  under  the  protection  of 
both.  Persons  placed  on  board  a  cartel,  with  their 
own  consent,  by  the  government  of  the  enemy,  to 
be  carried  to  their  own  country,  are  bound  to  do 
no  act  of  hostility.  Therefore  a  capture  made  by 
such  persons  from  the  enemy,  of  a  vessel  of  their 
own  country,  is  not,  in  contemplation  of  law,  a  re- 
capture, and  confers  upon  them  no  right  as  salvors, 
nor  does  it  restore  the  former  owner  to  his  title  to 
the  vessel.^ 

The  j)rinciple  which  interdicts  commercial  inte]'-  Uuio  of  sus- 
course  between  belligerents,  is  equally  ap]:)licable  commCTcM  in- 
to theil'  allies.  tcrcourse  ap- 
.                                                       Tin             IT  plical^le  to  al- 

"It  IS  well  known,  says  Lord  Stowell,  "that  aiiesasweii  as 
declaration  of  hostility  naturally  carries  with  it  an  ^  '^^^^"  ^' 
interdiction  of  commercial  intercourse.  It  leaves 
the  bellio-erent  countries  in  a  state  which  is  incon- 
sistent  with  the  relations  of  commerce.  This  is  the 
natural  result  of  a  state  of  war,  and  it  is  by  no 
means  necessary  that  there  should  be  a  special  in- 
terdiction of  commerce  to  produce  that  eftect.  At 
the  same  time  it  has  happened,'  since  the  world  has 
grown  more  commercial,  that  a  practice  has  crept 
in  of  admitting  particular  relaxations,  and  if  one 
state  only  is  at  war,  no  injury  is  committed  to  any 
other  state.  It  is  of  no  importance  to  other  nations 
how  much  a  single  belligerent  chooses  to  weaken 

'  Crawford  v&.  The  William  Penn,  Teters,  lOG;  The  Mary  Fol- 
ger,  5  Rob.,    00  ;  La  Rosine,  2  Rob.,  372. 


28  COMMERCE   SUSPENDED. 

and  dilute  his  own  riglits,  but  it  is  otherwise  when 
allied  nations  are  pursuing  a  common  cause  against 
a  common  enemy. 

Between  them  it  must  be  taken  as  an  implied,  if 
not  an  express  contract,  that  one  state  shall  not 
do  any  thing  to  defeat  the  general  object.  If  one 
state  admits  its  subjects  to  carry  on  an  uninter- 
rupted trade  with  the  enemy,  the  consequence  may 
be,  that  it  will  supply  that  aid  and  comfort  to  the 
enemy,  especially  if  it  be  an  enemy  like  Holland, 
very  materially  depending  on  the  resources  of  for- 
eign commerce,  which  may  be  very  injmious  to  the 
prosecution  of  the  common  cause  and  the  interests 
of  its  ally.  It  should  seem,  therefore,  that  it  is  not 
enough  to  say  that  one  state  has  allowed  this  prac-' 
tice  to  its  own  subjects;  it  should  appear  to  be,  at 
least,  desirable  that  it  could  be  shown,  either  that 
the  practice  is  of  such  a  natui-e  as  can  in  no  man- 
ner interfere  with  the  common  operations,  or  that 
it  has  the  allowance  of  the  confederate  state."^ 

A.ttemptsto         The  allurement  of  brilliant  profits  which  may 
orsuspe^ndou  I'^sult  from  a  successful  violation  of  the  rule  of 
of  commerce,  prohibition  of  Commercial  intercourse  between  bel- 
ligerents, has  led  to  many  individual  attempts  to 
evade  the  rule,  or  avoid  the  penalties  of  its  infringe- 
ment by  various  artifice ;  but  no  ingenuity  has  yet 
succeeded  in  discovering  a  mode  by  which  a  trade 
between  belligerents  can  be  carried  on  with  impu- 
nity, without  the  authorization  of  the  governments. 
In  one  case,  a  cargo  was  shipped  in  England,  des- 
tined for  the  mark.:L  of  the  enemy.     An  attempt 

'  The  Neptune,  6  Rob.,  405. 


COMMEECE    SIJSPEI^DED.  29 

was  made  to  protect  it  by  dividing  tlie  voyage,  so 
that  the  cargo  sliould  be  taken  in  the  first  instance 
to  a  neutral  port,  from  wMcli  it  might  or  might 
not  thereafter,  be  carried  to  the  place  of  its  real 
destination — the  port  and  market  of  the  enemy .^ 
U2:)on  a  capture  being  made,  it  was  condemned  to 
the  captors.  In  his  ojiinion  in  this  case.  Lord 
Stowell  says:  "Without  the  license  of  govern- 
ment, no  communication,  direct  or  indirect,  can  be 
carried  on  with  the  enemy.  Where  no  rule  of  law 
exists,  a  sense  or  feeling  of  general  expediency, 
which  is,  in  other  words,  common  sense,  may  be 
fairly  applied ;  but  where  a  rule  of  law  interferes, 
these  are  considerations  to  which  the  court  is  not 
at  liberty  to  advert.  In  all  the  cases  that  have  oc- 
curred on  this  question,  and  they  are  many,  it  has 
been  held  indubitably  clear,  that  a  subject  cannot 
trade  with  the  enemy  without  the  special  license 
of  the  government.  The  interj)osition  of  a  prior 
port  makes  no  difference ;  all  trade  with  the  enemy 
is  illegal ;  and  the  circumstance  that  the  goods  are 
to  go  first  to  a  neutral  port,  will  not  make  it  lawful ; 
the  tracle  is  still  liable  to  the  same  abuse,  and  to  the 
same  political  danger,  whatever  that  may  be." 

In  another  case,  an  attempt  was  made  to  protect 
property  purchased  in  the  country  of  the  enemy, 
by  the  employment  of  a  neutral  intermediary  ;  but 
upon  capture,  it  was  condemned  as  la^^^ul  prize,  the 
neutral  being  regarded  in  such  case,  as  the  mere 
agent,  the  property  being  considered,  in  legal  in- 
tendment, as  passing  directly  from  the  enemy  to 
the  purchaser.^ 

'  The  Jonr/e  Pieter,  4  Rob.,  79. 

'  The  Samuel,  4  Rob.,  284 ;  8  Term.  R.,  548. 


30  COMMERCE   SUSPENDED. 

In  another  case,  an  attempt  was  made  to  elude 
tlie  rule  by  carrying  on  the  trade  -with  tlie  enemy 
by  a  firm  consisting  j)artly  of  neutrals  and  partly 
of  belligerents,  but  it  was  held  that  "  even  an  inac- 
tive or  sleeping  partner,  as  it  is  termed,  cannot  re- 
ceive restitution  in  a  transaction  in  which  he  could 
not  lawfully  be  engaged  as  a  sole  trader."^ 

The  earlv  decisions  in  the  Ensrlish  common  law 
courts  in  which  the  doctrine  of  the  illegality  of 
commercial  intercourse  between  bellio:erents  was 
involved,  were  not  in  entire  conformity  with  the 
principle  as  established  in  the  admiralty.^  But  a 
uniformity  of  decision  was  definitively  determined 
by  Lord  Kenyon  in  a  later  case,^  in  which  he  says : 
Present uni-    "The  rcasous  Urged,  and  the  authorities  cited,  are 

formitj^  of  law  t  ...  -,  i       •  , 

and  admiralty  Ko  many,    and  SO  uuitorm,   and  so  conclusive,  to 

thSpoint°^    show  that  a  British  subject's  trading  with  an  enemy 

is   illegal,  that   the   question  may   be    considered 

finally  at  rest,  and  it  is  needless  to  delay  giving 

judgment,  for  the  sake  of  pronouncing  the  opinion 

of  the  court  in  more  formal  terms." 

Rule  of  sus-        The  reasons  on  which  the  princi23le  is  established, 

pension  in      which  iutcrdicts  commercial  intercourse   between 

commerce  ap-  _  ^  •  _  n 

piicabieon      bellig^ereuts,  make  it   eqnally  applicable,  whether 

^nd  as  well  as  ?  x  ^        j.  j.  j 

m  water.  that  intercourse  be  conducted  upon  the  land  or  by 
water.  A  note  in  Rolle  has  been  cited  as  authority, 
showing  that  it  was  anciently  deemed  illegal  for  an 
English  subject  to  trade  with  Scotland,  then  in  a 
general  state  of  enmity  with  England.^  Lord  Stow- 
ell,  in  the  case  of  The  Hoop,  before  cited,  refen-ing 

'  Th"  Franklin,  6  Rob.,  131. 

^  Gist  vs.  Mason,  1  Term  R.,  84 ;  Bell  vs.  Gibson,  1  Bos.  & 
Pul.,  245. 

3  Potts  vs.  Bell,  8  Term  R.,  548. 
MloUe's  Ab.,  173. 


COMilEECE    SUSPENDED.  31 

to  tlie  note  in  Rolle,  says  :  "  Wliat  the  common  law 
of  England  may  be,  it  is  not  necessary,  nor  perhaps 
proper,  for  me  to  inquii'e ;  but  it  is  difficult  to  con- 
ceive that  it  can,  by  any  possibility,  be  otherwise, 
for  the  rule  in  no  degree  arises  from  the  transac- 
tion being  on  the  water,  but  fr^om  principles  of  pub- 
lic policy,  and  of  public  law,  which  are  just  as 
weighty  on  the  one  element  as  on  the  other,  and  of 
which  the  cases  have  more  fi'equently  happened 
upon  the  water,  merely  in  consequence  of  the  insu- 
lar situation  of  this  country." 

Although  the  rule  of  prohibition  of  commercial 
intercourse  between  belligerents  is  applied  by  courts 
of  admiralty  in  the  exercise  of  prize  jurisdiction 
with  the  utmost  rigor  and  strictness,  yet  in  many  Rigorous  en- 
cases which  have  arisen,  the  disposition  has  been  ['J.'Jruirtitb 
clearly  manifested  not  to  extend  the  rule  beyond  'Q  its  just 

.       ,  -  .  .  ,  .  ^1       limits. 

the  limits  required  by  a  just  consideration  oi  the 
reasons  and  policy  upon  which  it  is  founded. 

The  ship  AhUj  sailed  from  a  port  in  England  for  cases  iiiusira 
the  island  of  Demerara,  then  a  Dutch  colony,  on  JJ"; onts'"^^; 
the  11th  of  September,  1795.     War  was  declared  forcement. 
with  Holland  on  the  16th  of  the  same  month,  and, 
of  course,  Demerara  became,  ipso  facto,  a  hostile 
possession.     The  ship  was  captm-ed  off  its  coast,  in 
May,  1796 ;  but  in  the  meanwhile  the  island  had 
surrendered  to  a  British  force,  and  consequently  had 
become  a  British  colony. 

It  was  held  by  Lord  Stowell  that,  as  the  port  to 
which  the  ship  was  destined  did,  at  the  time  of  her 
carrying  the  design  into  eifect,  belong,  not  to  an 
enemy,  but  to  his  Britannic  Majesty,  the  ship  was 
not  to  be  deemed  in  fact  an  illegal  trader.^ 

>  The  Ahhy,  5  Rob.,  251. 


32  COMMERCE    SUSPENDED. 

"  I  conceive,"  said  lie,  "that  there  must  be  an  act 
of  trading  to  the  enemy's  countr}',  as  well  as  the 
intention ;  there  must  be,  if  I  may  so  sj)eak,  a  legal 
as  well  as  a  moral  illegality.  If  a  man  fires  a  gun 
at  sea,  intending  to  kill  an  Englishman,  which 
would  be  legal  murder,  and  does  not  kill  an  Eng- 
lishman, but  an  enemy,  the  moral  guilt  is  the  same, 
but  the  legal  effect  is  different — ^the  accident  has 
turned  up  in  his  favor — the  criminal  act  intended 
has  not  been  committed,  and  the  man  is  innocent 
of  the  legal  offence.  So,  if  the  intent  was  to  trade 
with  the  enemy  (which  I  have  already  observed 
cannot  be  ascribed  to  the  party  at  the  commence- 
ment of  the  voyage,  hostilities  not  having  then 
been  declared),  but  at  the  time  of  carrying  the  de- 
sign into  effect,  the  person  is  become  not  an  enemy 
— the  intention  here  wants  the  corjpus  delicti. 

"  No  case  has  been  produced  in  which  the  mere  in- 
tention to  trade  with  the  enemy's  country,  con- 
tradicted by  the  fact  of  its  not  being  an  enemy's 
country,  has  enured  to  condemnation.  Where  a 
country  is  known  to  be  hostile,  the  commencement 
of  a  voyage  toward  that  country  may  be  a  sufiicieiit 
act  of  illegality;  but  where  the  voyage  is  under- 
taken without  that  knowledge,  the. subsequent  event 
of  hostility  will  have  no  such  effect.  On  principle, 
I  am  of  opinion  that  the  party  is  free  from  the  charge 
of  illegal  trading." 

English  merchants  shipped  on  board  a  Spanish 
'  vessel  bound  from  London  to  Corunna,  a  quantity 
of  merchandise,  to  the  order  of  Spanish  merchants. 
Shortly  after  the  shipment,  and  the  voyage  had 
commenced,  hostilities  were  declared  between  Great 
Britain  and  Spain,  and  on  the  voyage  the  vessel  was 


COJVOIEECE    SUSPENDED.  83 

seized  by  a  Britisli  captor.^  Lord  Stowell  decreed 
restitution  of  tlie  property  to  the  shippers,  sa}dng : 
"Tiie  Engiish  merchants  who  shipped  the  goods 
Avere  not  called  upon  to  know  that  the  injustice 
of  the  other  party  would  produce  a  war  before  the 
goods  were  delivered — ^the  goods  were  to  have  been 
at  tlie  risk  of  the  shipper  till  delivery — and  the 
contract  was  perfectly  fair." 

In  all  cases,  however,  in  which  voyages  have 
been  commenced  for  trade  with  the  enemy's  coun- 
try before  the  breaking  out  or  declaration  of  hos- 
tilities, it  is  incumbent  upon  the  claimants  whose 
pro23crty  is  captured,  to  show  that  on  the  first  notice 
of  hostilities,  all  diligence  possible  was  employed  to 
effect  a  countermand  of  the  voyage,  or  to  change 
the  destination  of  the  vessel,  so  as  to  avoid  the 
culpability  of  an  illegal  trading  with  the  enemy. 
If  such  exertions  have  not  been  made,  and  if,  either 
through  neglect  or  design,  the  goods  have  been  al- 
lowed to  leave  the  enemy's  country,  no  excuse, 
based  upon  individual  inconvenience,  or  the  ne- 
cessity or  policy  of  withdrawing  property  out  of 
the  country  of  the  enemy,  can  of  strict  right  avail, 
to  avert  a  judgment  of  condemnation  upon  a  cap- 
ture. 

It  was  held  in  the  case  before  cited,  of  Bell  vs. 
Gibson,  that  if  an  Englishman,  at  the  commence- 
ment of  hostilities,  have  merchandise  in  an  enemy's 
country,  he  might  withdi'aw  it  therefrom.  But,  as 
we  have  seen,  the  later  case  of  Potts  vs.  Bell.,  re- 
versed that  doctrine,  and  it  was  there  definitively 
established  that  trading  with  the  enemy  is  ground 

'  The  Packet  De  Bilboa,  133. 


34  COMllEKCE   SUSPENDED. 

of   confiscation,  and  this  without  any    exception, 
even  upon  the  fact  being  shown  that  the  goods 
were  purchased  before  the  war. 
Mitigation  in        jj^  cascs  w^hich  prescut  circumstances  of  extreme 

cases  oi  groat  _  J-  _  ^ 

hardship.'  hardship,  courts  of  admiralty,  in  the  exercise  of 
prize  jurisdiction,  have  manifested  a  willingness  to 
soften  the  asperity  of  the  rule,  in  its  application. 

In  the  case  of  ^''Tlie  Dree  Gehroeders^\  Lord  Stow- 
ell  said :  "  Pretences  of  withdrawing  funds  are  at 
all  times  to  be  watched  with  considerable  jealousy; 
but  when  the  transaction  appears  to  have  been  con- 
ducted hona  fide  with  that  view,  and  to  be  dii-ected 
only  to  the  removal  of  property  which  the  acci- 
dents of  war  may  have  lodged  in  the  belligerent's 
country,  cases  of  this  hind  are  entitled  to  be  treat- 
ed with  some  indulgence."^ 

In  another  case  in  which  an  indulgence  was  al- 
lowed by  the  court  for  the  withdrawal  of  property 
from  the  enemy's  country,  Lord  Stowell  declared 
that  his  decree  must  be  considered  as  in  no  degree 
relaxing  the  necessity  of  obtaining  a  license.^ 

In  another  case^  decided  by  Lord  Stowell,  it 
would  seem  that  the  rigor  of  the  rule  was  made 
to  bend  to  the  peculiar  circumstances.  Upon  an 
examination  of  the  circumstances,  it  will  be  found 
that  although  the  letter  of  the  rule  may  be  relaxed, 
its  spirit  is  not  contravened. 

The  property  in  question,  in  that  case,  consisted 
of  wines,  a  portion  of  which  had  been  purchased 
in  S2:)ain,  for  the  supply  of  the  British  fleet,  before 
hostilites  with  that  country.     After  the  breaking 

'  The  Dree  Gebrocders,  4  Rob.,  234. 

^  The  Juffrow  Cathcrina^  5  Rob.,  141. 

'  The  Madonna  delle  Grazie,  14  Rob.,  195. 


COmiEECE     SUSPENDED.  35 


out  of  the  war,  a  secret  deposit  was  made  of  tlie 
wines  in  Spain,  and  from  thence  they  were  removed 
to  Leghorn ;  previous  to  which,  however,  some  new- 
ly purchased  wines  were  added  for  mixing,  in  order 
to  color  the  stock  which  had  become  too  pale  to  be 
salable.  The  mixture  of  the  new  wine,  purchased 
after  the  commencement  of  hostilities,  was  consid- 
ered by  the  learned  court  so  indispensably  neces- 
sary to  the  disposal  of  the  old  cargo,  as  not  to  af- 
fect the  legality  of  the  transaction. 

The  coui't  then  proceeds  to  excuse  the  want  of  a 
license  in  that  case,  as  follows : 

"  It  is  said  that  Mr.  Gregory,  the  claimant  in  that 
case,  might  have  obtained  a  license.  I  certainly  do 
not  mean  to  weaken  the  oblisration  to  obtain  licenses 
for  every  sort  of  communication  with  the  enemy's 
country,  in  all  cases  where  the  measui'e  is  practica- 
ble ;  but  I  think  I  see  great  difficulties  that  might 
have  occurred  in  applying  for  a  license,  or  using  it, 
in  the  present  case.  How  could  Mr.  Gregory  de- 
scribe his  wines  as  to  the  place  from  whence  they 
were  to  be  exported  ?  They  were  deposited  secret- 
ly, and  could  only  be  exj)orted  by  particular  oppor- 
tunities. On  the  other  hand,  can  I  entertain  a 
doubt  tha^t  government  would  have  been  very  de- 
sirous to  protect  him  in  the  recovery  of  his  prop- 
erty, purchased  under  a  contract  with  them?  Or, 
on  the  ground  of  public  utility,  is  it  too  much  to 
hold  out  this  encouragement  to  persons  engaged  in 
contracts  of  this  sort,  that  they  shall  obtain  every 
facility  in  the  disposing  of  such  stores  ? 

It  would  be  considerable  discouragement  to  per- 
sons in  such  situations,  at  a  distance  from  home,  and 
employed  in  the   public  service,  if  they  were  to 


36  RIGHTS    AKD   LIABILITIES    EESULTIISTG    FEOM   WAE. 

know,  tliat  in  case  of  hostilities  intervening,  they 
would  be  left  to  get  off  their  stores  as  well  as  they 
could,  with  a  danger  of  capture  on  every  side.  The 
circumstances  of  this  case  may  be  taken  as  virtu- 
ally amounting  to  a  license,  inasmuch  as  if  a  license 
had  been  applied  for,  it  must  have  been  granted." 

Commerce  carried  on  without  license,  by  a  citi- 
zen resident  in  an  enemy's  country,  even  though 
he  be  a  representative  there  of  his  own  country,  and 
even  though  such  commerce  be  manifestly  benefi- 
cial to  his  own  country,  is  illegal,  and  the  property 
whioh  is  the  subject  of  it  may  become  lawful  ])Tize? 

Under  this  chapter,  which  treats  of  the  rights  and 

obligations  and  liabilities  of  citizens  of  belligerent 

nations  and  their  allies,  the  effect  which  a  condition 

Legal  effect     of  War,  of  itself,  produces  upon  the  person,  proper- 

^iTOTopeSy '  "^y  ^^^  rights  of  the  citizen  may  be  briefly  consid- 

and  rights  of    ercd. 

The  property  of  a  nation  consists  of  the  property 
of  the  aggregation  of  individuals  composing  that 
nation,  and  therefore,  a  claim  to  indemnification  for 
injuries  sustained  from  a  foreign  state  (to  enforce 
which,  is  the  ostensible  cause  of  all  international 
wars),  may  be  satisfied  by  a  seizure  of  the  property 
of  any  individual  members  of  that  state.  Upon  this 
principle,  the  practice  of  nations  in  time  of  war  has 
always  proceeded.  Although,  as  Grotius  says, 
there  is  no  natural  responsibility  of  one  person  for 
the  offences  of  another,  yet  by  the  law  of  nations, 
the  ^^jm^e  gentiwrn  vohmtario^''  the  whole  propei-ty 
of  the  individual  members  of  a  state  is  responsi- 

'  Ex  parte  Baglehole,  18  Ves.  Jr.,  528;  1  Rose,  2'71. 


RIGHTS   AND    LIABILITIES    RESULTING   FROM    WAE.  SY 

ble  for  tlie  debts  or  obligations  of  the  state  or  sove- 
reio:n.^ 

Upon  tliis  point  Vattel  is  more  empliatic.  He 
says,  that  the  property  of  individuals  in  the  aggre- 
gate, is  to  be  considered,  with  respect  to  other  states, 
as  the  property  of  the  nation  itself.  A  nation,  be- 
ing regarded  by  foreign  nations  as  constituting 
only  one  whole,  one  single  person,  all  their  wealth 
together  can  only  be  considered  as  the  wealth  of 
the  same  person. 

If  one  nation  has  a  right  to  any  part  of  the  prop- 
erty of  another,  she  has  an  indiscriminate  right  to 
the  property  of  the  citizens  of  the  latter  nation,  un- 
til the  debt  is  paid.^ 

From  this  principle  result  many  important  rio^hts  General  right 

of  caTDtures. 

and  liabilities,  such  as  captures,  reprisals,  &c.,  by  reprisals,  kc 
which  the  property  of  any  citizen  of  an  enemy's 
state  is  seized  as  indemnification  for  the  injuries 
sustained  by  the  state  or  the  citizens.      These  ^vill 
be  more  fully  considered  hereafter. 

Resulting  from  this  principle,  also,  it  is  well  es- 
tablished, that  the  persons  and  the  property  of 
alien  enemies,  found  within  the  state,  when  a  war 
breaks  out,  may  be  rightfully  seized  by  the  govern- 
ment, the  individuals  as  prisoners  of  war,  and  the 
property  to  indemnify  the  nation.  The  modern 
practice  of  nations  has  greatly  mitigated  the  se- 
verity of  the  rule  of  right,  and  in  some  instances,  it 
has  been  modified  by  treaty ;  but  there  is  no  doubt 
of  the  right,  and  that,  in  the  absence  of  express  con- 
vention, it  may  be  lawfully  exercised.     By  Magna 

'  Grolius  De  Jure,  Lib.  III.,  c.  ii,  §  2. 

*  Vattel,  Droit  des  Gens,  Liv.  II.,  c.  vii.,  §§81,  82. 


38  RIGHTS    ATJD    LIABILITrES    RESULTING    FROM   WAR. 

Cliarta  of  Great  Britain,  it  was  provided  tliat  tlie 
mercliants  of  a  foreign  nation,  found  in  Great 
Britain,  upon  the  breaking  out  of  hostilities  with 
that  nation,  should  Ibe  detained,  until  it  were  known 
how  British  subjects  were  treated  by  the  enemy, 
and  then  to  be  released  or  detained  accordingly.^ 
Pule  in  the  In  the  Middle  Ages,  the  rule  was  rigidly  enforced, 
early  aged,  j^^^  -^^  relaxation  commenced  with  the  advance  of 
civilization  and  the  growing  appreciation  of  the  im- 
portance of  commerce.  As  early  as  1483,  Louis  XI. 
granted  protection  to  the  persons  and  property  of 
the  Hanse  Towns,  with  liberty  to  remain  for  one 
year  after  the  war  broke  out.^  In  the  sixteenth 
century  it  became  a  common  stipulation  in  commer- 
cial treaties  between  nations,  that  the  citizens  or 
subjects  of  either  should  be  allowed  a  specified 
time,  varying  from  three  months  to  two  years,  from 
the  commencement  of  a  war,  during  which  they 
mio'ht  remain  unmolested  for  the  settlement  of  their 
afiiiirs,  and  retire  peaceably,  at  any  time  within  the 
Treaty  stipuia-  Period  Stipulated.  By  the  treaty  of  1786  between 
tions.  Great  Britain  and  France,  it  is  provided  that  the 

subjects  of  either  power  shall  be  allowed  to  con- 
tinue their  residence  during  war,  in  the  dominions 
of  the  other,  as  long  as  they  comport  themselves  to 
the  satisfaction  of  the  government.^  An  article  of 
a  similar  character  was  insei^ted  in  the  treaty  of 
1795  between  the  United  States  and  Great  Britain. 
By  this  it  is  provided,  that  the  citizens  of  either 
power  may  remain  unmolested  during  war  in  the 

'  Blackstone's  Law  Tracts,  XVII.-XXXIIL,  LI. 
*  Dumont,  IIL,  ii.,  123. 


s 


De  Marten's  Recueil,  IV.,  156. 


EIGHTS    AND    LIABILITIES    EESULTDn-G   FEOJM   WAR.  39 

dominions  of  tlie  other,  as  long  as  ttey  "  behave 
peaceably  and  commit  no  offence  against  the  laws ;" 
and  in  case  either  government  thinks  j^roper  to  de- 
sire their  removal,  twelve  months'  notice  shall  be 
allowed  them  for  that  purpose,^     But,  as  before  re-  Modern  rule 
marked,  where  there  is  no  treaty  stipulation  to  the  j^^^^^gjip^ 
contrary,  the  right  remains.     The  rule  so  well  es-  tions. 
tablished  in  Eui^ope  has  been   recognized  by  the 
hip-hest    federal    tribunal  in   the   United    States. 
"  However  strong,"  says  Chancellor  Kent,  "  the  cur- 
rent of  authority,  in  favor  of  the  modern  and  milder 
construction  of  the  rule  of  national  law  on  this  sub- 
ject, the  point  seems  to  be  no  longer  open  for  dis- 
cussion in  this  countiy,  and  it  has  been  definitively 
settled  in  favor  of  the  ancient  and  sterner  rule,  by 
the  Supreme  Court  of  the  United  States.     The  ef- 
fect of   war  upon  British  property  found  in  the 
United  States  on  land,  at  the  commencement  of  the 
war,  was  learnedly  discussed  and  thoroughly  con- 
sidered, in  the  case  of  "  Brown ;"  and  the  Circuit 
Court  of  the  United  States  at  Boston,  decided,  as 
upon  a  settled  rule  of  the  law  of  nations,  that  the 
goods  of  the  enemy  found  in  the  country,  an\i  all 
the  vessels  and  cargoes  found  afloat  in  our  ports,  at 
the  commencement  of  hostilities,  were   liable   to 
seizure  and  confiscation,   and  the  exercise  of  the 
right  vested  in  the  discretion  of  the  sovereign  of 
the  nation.     When  the  case  was  brought  up,  on 
appeal,  before  the  Supreme  Court  of  the  United 
States,  the  broad  principle  was  assume.  1,  that  war 
gave  to  the  sovereign  the  right  to  take  the  persons, 
and  confiscate  the  property  of  the  enemy,  wherever 

'  De  Marten's  Recueil,  V.,  686. 


40  RIGHTS    Al^D    LIABILITIES    RESULTING   FROM   WAR. 

fouud,  and  tliat  tlie  mitigation  of  tliis  rigid  rule, 
whicli  the  wise  and  humane  policy  of  modern  times 
had  introduced  into  practice,  might,  more  or  less, 
affect  the  exercise  of  the  right,  but  could  not  im- 
pair the  right  itself"^ 
Property  ex-        There  is  one  description  of  property  of  the  enemy 

empt  from  the       ,  .    ,      .     .  •    ^  t  ,     -i     •  •  ^  *^ 

rule,  pubuc  wiiicli  IS  inYariably  respected  m  time  of  war,  and 
that  is,  the  sums  due  from  the  state  to  the  enemy, 
such  as  the  property  which  the  enemy  may  have  in 
the  public  funds  or  stock.  This  property  is  justly 
regarded  as  intrusted  to  the  faith  of  the  nation. 
Its  credit,  honor,  security,  require  that  it  should 
be  held  sacred.  An  attempt  was  made  by  Prus- 
sia in  1752  to  apply  such  property  for  the  pur- 
pose of  reprisals.  But  it  was  universally  held  at 
the  time  as  an  infamous  breach  of  public  faith, 
without  example  to  justify  it,  and  not  likely  to 
fui'nish  excuse  or  precedent  for  future  action.^ 

Private  debts.  But  debts  due  from  individuals  to  subjects  or 
citizens  of  the  enemy's  country,  stand  in  an  entirely 
different  position  from  that  of  debts  due  from  the 
state  which  are  under  the  guaranty  of  the  national 
honor.  Debts  due  from  individuals  to  the  enemy, 
may  undoubtedly  be  confiscated,  by  the  rigorous 
application  of  the  rights  of  war,  being  the  projoerty 
of  the  enemy,  and  therefore  liable  to  confiscation ; 
but  in  modern  warfare  the  exercise  of  this  ri^rht 
has  been  almost  universally  discontinued. 

"  The  claim  of  a  right  to  confiscate  debts,"  says 
Chancellor  Kent,   "contracted   by   individuals   in 

'  Kent's  Com.,  Vol.  I.,  59 ;  Broivn  vs.  The  United  States,  8 
Oranch,  110;    Ware  vs.  Hilton,  3  Dallas,  199. 

^  Charles  De  Marten's  "  Causes  Celeb,  du  Droit  des  Gens," 
Vol.  II. 


RIGHTS    AND   LIABILITIES    EESULTESTG   FEOM   WAE.  41 

time  of  peace,  and  whicli  remain  due  to  the  sul)-  Private  debts 
jects  of  the  enemy  at  tlie  declaration  of  war,  rests  ^spe^ded  but 
very  much,  upon  the  same  principle  as  that  concern-  gg^^^g^''^  ^°^g 
ing  the  enemy's  tangible   property  found  in  the  modern  mip. 
country  at   the   opening  of  the  war.     In   former 
times,  the  right  to  confiscate  debts  was  admitted  as 
a  doctrine  of  national  law,  by  Grotius,^  Puffendorff,^   , 
Bynkershoek,^  and  Lord  Hale.*     It  had  the  coun- 
tenance of  the  civil  law,^  and  even  Cicero,^  when 
stating  the  cases  in  which  promises  are  not  to  be 
kept,  mentions  that  of  the  creditor  becoming  the 
enemy  of  the  country  of  the  debtor.     Down  to  the 
year  1737,  the  general  opinion  of  jurists  was  in 
favor  of  the  right.     But  VatteF  says  that  a  relaxa- 
tion of  the  rigor  of  the  rule  has  since  taken  place 
among  the  sovereigns  of  Europe,  and  that,  as  the 
custom  has  been  generally  received,  he  who  shoid(} 
act  contrary  to  it,  would  violate  the  public  faith,  for 
strangers  trusted  his  subjects  only  from  a  fii'm  per 
suasion  that  the  general  custom  would  be  observed. 
There  has  been  frequently  a  stipulation  in  modern  the  subject, 
treaties  that  debts  or  moneys  in  the  public  funds 
should  not  be  confiscated  in  time  of  war,  and  these 
conventional  provisions  are  evidence  of  the  sense 
of  the  governments  which  are   parties   to   them, 
that  the  right  of  confiscation  of  debts  and  things 
in  action  is  against  good  policy,  and  ought  to  be 
discontinued.     The   treaties   between   the  United 
States  and  Colombia,  in  1825,  and  Chili,  in  1832, 
and  Venezuela  in  1836,  and  the  Peru  Bolivian  Con- 

'  Grotius  B.  L,  c.  i.,  §  6;    B.  IIL,  c,  iii.,  §  4. 

'  PiifF.  I.,  8,  c.  vi.,  19,  20.         3  Byjji,_  i^  j^  (,_  ^^j^ 

'  Lord  Hale,  I.,  95.         "  Dig.  41,  1,  49,  15. 

'  Cic.  De  Off.  I.  3.,  c.  xxvi.         '  Vattel  B.  III.,  c.  v.,  §  77. 


42  EIGHTS    A^^D    LIABILITIES    EESULTIKG    FEOM    WAE. 

federation  in  1838,  and  of  Ecuador  in  1839,  con- 
tained sucli  a  provision.  But  tlie  treaty  between 
the  United  States  and  Great  Britain  in  1795,  went 
further,  and  contained  the  explicit  dechxration  that 
it  was  "  unjust  and  impolitic  that  the  debts  of  in- 
dividuals should  be  impaired  by  national  differ- 
ences." Vattel  says,  that  everywhere,  money  lent 
to  the  public  is  exempt  from  confiscation  and  seiz- 
ure in  time  of  war.  Emerigon^  and  Martens^  make 
the  same  declaration.  With  regard  to  the  United 
States,  however,  the  cases  of  Brown  vs.  The  United 
States^  8  Cranch,  110,  and  Ware  vs.  Hilton^  3  Dal- 
las, 199,  establish  it  as  a  principle  of  public  law,  as 
far  as  the  same  is  understood  and  declared  by  the 
highest  judicial  authorities  in  that  country,  that  it 
rests  in  the  discretion  of  the  legislature  of  the 
Union,  by  a  speci'dl  law  for  that  purpose,  to  confis- 
cate debts  contracted  by  its  citizens  and  due  to  the 
enemy,  though,  as  it  is  asserted  by  the  same  author- 
ity, this  right  is  contrary  to  universal  practice,  and 
may  therefore  well  be  considered  as  a  naked  and 
impolitic  right,  condemned  by  the  enlightened 
judgment  and  conscience  of  modern  times."^ 

But  the  modern  practice  of  nations  in  war,  while 
departing  from  the  ancient  rule  of  confiscation  of 
debts  to  the  enemy,  is  uniform  in  suspending  their 
payment,  either  by  absolute  prohibition,  or  by  clos- 
ing the  doors  of  the  courts  against  proceedings  for 
their  enforcement.  Thus  the  debt  is  not  annulled, 
but  the  remedy  to  reduce  it  to  possession  is  sus- 

'  Emerigon,  Des.  Ass.  I.,  567  ;    De  Martens,  B.  VIII.  c.  ii.,  §  5. 
'  Kent's  Cora.,  I.,  71 ;   The  Ann  Greaie,  1  Gall.,  292. 


EIGHTS   AISTD   LIABILITIES   EESULTESTG   FEOM    WAE.  43 

pended.  Tliis  doctrine  was  establislied  in  a  lead- 
ing Eno-lisli  case,  in  whidi  one  Boussemaker,  a  bank- 
rapt,  was  indebted  to  certain  alien  enemies,  whose 
debts  the  commissioners  refused  to  admit.  On  tke 
return  of  peace,  these  creditors  filed  their  petition, 
praying  to  be  allowed  to  prove  theii'  claims,  and  upon 
the  d  ecision  of  the  case  in  the  Court  of  Chancery,  the 
Lord  Chancellor  took  occasion  to  explain  the  distinc- 
tions of  the  law  and  its  principles  on  the  important 
question  whether  the  right  of  an  alien  enemy  was 
destroyed,  or  only  suspended  by  war.  "  If  this " 
says  his  lordship,  "had  been  a  debt  arising  from  a 
contract,  entered  into  with  an  alien  enemy  during 
war,  it  could  not  possibly  stand,  for  the  contract 
would  be  void — but  if  the  two  nations  were  at 
peace  at  the  date  of  the  contract,  though,  from  the 
time  of  war  taking  place,  the  creditor  could  not 
sue,  yet,  the  contract  being  originally  good,  uj)on 
the  return  of  peace  the  right  would  revive.  It 
would  be  contrary  to  justice,  therefore,  to  confisc^ite 
this  dividend.  Though  the  right  to  recover  is  sus- 
pended, there  is  no  reason  why  the  fund  should  be 
divided  among  the  other  creditors.  The  point  is  of 
great  moment,  from  the  analogy  to  the  case  of  an 
action. 

"  The  policy  of  avoiding  contracts  with  an  enemy 
is  sound  and  wise ;  but  where  the  contract  was  orig- 
inally good,  and  the  remedy  is  only  suspended,  the 
proposition  that  therefore  the  fund  should  be  lost 
is  very  different."^ 

^  Ex  parte  Boussemaker,  13  Ves.  Jun.,  71. 


44  THE   CIVIL    WAE   IN   THE   ITNITED    STATES. 

THE  CIVIL  WAR  IN  THE  UNITED  STATES; 

With  a  Review  of  the  Judicial  Discijssio]S"s  ais^d 
Deteeminations  of  the  Rights  and  Liabilities 
Resulting  Theeefeom. 

[In  this  supplement  to  the  chapter  which  treats 
of  the  rights  and  lialDilities  resulting  from  war,  it  is 
proposed  to  consider  the  grave  and  interesting  ques- 
tions connected  with  those  rights  and  liabilities, 
which  have  constituted  the  basis  of  objections  to 
the  validity  of  the  maritime  captures  made  during 
the  existing  civil  war  in  the  United  States ;  and  to 
recite,  at  such  length  as  the  great  importance  of  the 
subject  may  justify,  the  judicial  discussions  and  de- 
terminations which  have  thus  far  been  had  upon 
these  questions. 
Belligerent         The  government  of  the  United  States,  in  entering 
cisedbythe    upou  the  performance  of  its  momentous  duty  of 
m'th?co!fduct  Suppressing  an  insurrection  of  its  slaveholding  citi- 
nf  the  civil     zcus,  wliich  had  assumed  the  character  and  propor- 
tions of  civil  war,  saw  fit  to  bring  into  exercise  its 
belligerent  rights,  so  far  as  they  relate  to  the  com- 
merce and  commercial  intercourse  of  the  insurgent 
section,  carried  on  by  means  of  the  ports  upon  its 
coast  or  rivers. 

These  rights  were  asserted  by  the  Executive  in- 
stitution of  a  blockade  of  these  ports. 

Having  in  view  the  purpose  for  which  the  block- 
ade of  the  southern  ports  was  established,  namely, 
the  cuttinof  off  the  insurs^ents  from  all  means  of  con- 
verting  their  movable  property  into  warlike  muni- 
tions and  stores  for  subsistence,  which  would  enable 
them  to  prosecute  and  prolong  the  unholy  contest 


RIGHTS   AND    LIABILITIES    RESULTESTG   THEEEFROM.  45 

upon  wLicli  tliey  had  entered,  tlie  wisdom  of  the  ^^'i'^  wisdom 

T  (^  •  TIT  111T  1         °^  ''"^  policy 

poncy  of  resorting  to  a  belligerent  blockade,  rather  of  the  beiiiger- 
than  to  the  sovereign  right  of  closing  the  ports  by  of  iheTnsur- 
miinicipal  regulation,  cannot  be  questioned.  gent  ports; 

A  bellig-erent  blockade  addresses  itself  to  neutral 
commerce  throughout  the  world.  It  speaks  to  neu- 
ti'al  traders  in  all  quarters  of  their  dispersion,  pro- 
hibiting them  from  fitting  out  their  vessels  for  a 
voyage  to  any  of  the  invested  ports,  forbidding 
their  approach  to  such  ports  under  any  pretence 
whatsoever,  and  holdins;  over  them  the  terrors  of 
capture  and  its  consequences,  not  only  for  the  act- 
ual but  the  attempted  offence,  and  not  only  upon 
the  voyas^e  on  which  the  interdict  was  evaded,  l^ut 
at  any  time  on  the  voyage  following  that  of  the 
offence,  and  not  only  while  in  the  act  of  violation, 
but  an}^vhere  upon  the  high  seas,  out  of  neutral 
jurisdiction. 

The  closing  of  the  ports  by  municipal  regulation,  in  preference 

■\      -I      '  ,-i  1  ,         c         ,  T-,T.       toa  municipal 

declaring  them  no  longer  ports  or  entr}-  and  deliv-  regulation, 
ery,  is  a  sovereign  right,  which  can  be  exercised  and  ports^L^ports 
enforced  only  within  the  territorial  jurisdiction  of  of  entry. 
the  nation. 

Beyond  the  few  miles  fi'om  the  coast,  to  which 
that  jurisdiction  is  limited,  it  is  wholly  inoper- 
ative. 

The  fittins:  out  of  vessels  avowedly  destined  to 
ports  thus  closed,  is  no  offence.  The  approach  to, 
and  hovering  about,  such  closed  ports,  Avith  the 
avowed  design  of  entering  whenever  opportunity 
occurs  to  avoid  the  revenue  cruiser,  is  not  a  culpa- 
ble act,  for  which  any  penalty  can  be  imposed ;  and 
seizure  must  be  made  of  the  offending  vessel  before 
she  reaches  that   line  which  marks  the  restricted 


46  THE    CIVIL    WAE   LN"   THE   UNITED    STATES. 

limits  of  the  sovereign's  jurisdiction,  or  it  cannot 
be  made  at  all. 

To  enforce  sucli  a  regulation,  all  the  naval  forces 
of  the  world  would  be  ho2:)elessly  inadequate. 
When  to  this  is  added  the  consideration,  that  pro- 
ceedings for  the  forfeiture  of  property  seized  for  an 
mft-action  of  the  municipal  regulation,  must  be 
taken  upon  the  instance  side  of  the  Admiralty 
Courts  of  the  sovereign,  and  conducted  v^ithout 
any  of  the  summary  and  speedy  action  and  deter- 
mination, which  may  and  should  distinguish  the 
courts  that  are  organized  for  the  enforcement  of 
belligerent  rights  under  the  law  of  nations,  it  seems 
incredible,  that  any  one  can  have  doubted  the  wis- 
dom of  the  policy  adopted .  to  effect  the  purpose  of 
commercial  interdiction,  or  have  seriously  proposed 
its  virtual  abandonment,  by  a  resort  to  the  munici- 
pal regulation. 
Objeciions  But,  the  institution  of  a  blockade,  under  the  law 

ySfty  of  Sp-  ^^  nations,  being  the  exercise  of  a  purely  belligerent 
tines  for  tiio    riD'ht,  prcsupposcs  the  existence  of  war — of  war 

violation  of  ?  •   i  •  • ,  1     -x  xi  i?  li- 

the blockade,  wliicn  carries  With  it  the  consequences  oi  a  public 

war,  imposing  restrictions  upon  neutral  commerce, 
and  subjecting  to  confiscation,  property  impressed 
with  hostility  of  character ;  and,  it  was  urged  by 
distinguished  advocates,  as  a  fundamental  objection 
to  the  validity  of  captures  made  either  for  the  vio- 
lation of  the  asserted  bellig-erent  rie-ht,  or  as  the 
property  of  public  enemies,  or  impressed  with  a 
hostile  character,  that  under  the  peculiar  frame  of 
government  and  written  constitution  of  the  United 
States,  a  state  of  war,  carrying  with  it  such  conse- 
quences, could  not  result  merely  from  the  existence 
of  an  armed  rebellion  by  a  portion  of  its  citizens. 


IITGHTS   AND   LIABILITIES    RESULTING   THEKEFEOM,  4Y 

whatever  its  organization,  and  however  formida- 
ble its  dimensions;  that  even  under  monarchical 
or  other  forms  of  government,  without  written  con- 
stitutions, there  is  no  authority  for  the  position, 
that  a  state  of  war,  with  the  incidents  of  public 
war,  results  from  an  armed  insurrection,  occupying* 
portions  or  districts  of  an  empire  or  kingdom,  in 
the  absence  of  any  decree,  edict,  or  act  of  legisla- 
tion of  the  supreme  power. 

It  was  further  argued,  that  if  war,  with  its  attend- 
ant consequences,  did  not  exist  as  the  result  alone 
of  the  armed  insurrection,  it  could  not  lawfully  be 
called  into  existence  by  the  mere  exercise  of  the 
powers  confided  to  the  President  by  the  Constitu- 
tion of  the  United  States,  and  the  laws  made  in 
pursuance  thereof,  for  the  suppression  of  insurrec- 
tion, because,  by  the  tei-ms  of  the  Constitution,  war 
can  only  be  declared  or  called  into  existence  by  an 
act  of  the  Cono:ress  of  the  nation. 

It  was  therefore  argued,  that  captures  made  prior 
to  any  legislative  enactment,  and  which  could  be 
U})held  solely  under  the  law  of  nations,  as  affecting 
commerce  during  the  existence  of  public  war,  were 
without  warrant  of  law,  and  should  be  so  decreed, 
by  restitution  of  the  captured  property. 

These  positions  were  presented  and  illustrated 
with  great  ability  and  learning  by  the  distinguished 
advocates,  who  represented  the  interests  of  neu- 
tral or  rebel  claimants,  in  the  Federal  courts  of 
prize. 

How  they  were  met  and  answered  will  l)e  best  judicial  deter- 
shown  by  liberal  extracts  from  the  opinions  of  the  ^g^'se^'objel- 
eminent  judo^es  presiding  in  those  courts.  '-io^s- 

The  case  first  decided  was  that  of  The  Tropic 


48  THE    CIVIL    WAE   IN   THE    UNITED    STATES. 

Thecaseoftiie  JYind,  in  tlie  District  Court  for  the  District  of 

Tropic  Wind.  ' 

u".  s.  Distrkc  Colum Dia, 

Court  for  the  rni  •  j  ^'         '    j.  j.  ±  i 

District  of  Co-      JLhis  casc  assumed  a  peculiar  interest,  not  only 
hunbia.  because  it  was  the  first  which  arose  under  the  proc- 

lamation of  blockade,  but  because  the  prize  was  a 
British  vessel,  and  it  was  understood  that  Her  Brit- 
annic Majesty's  representative  at  Washington,  as- 
sumed, to  some  extent,  the  direction  of  the  defence, 
in  order  that  the  grave  questions  involved,  affecting 
the  rights  of  neutral  commerce,  should  be  thoroughly 
and  ably  presented  and  sustained. 

The  vessel  was  captured  on  the  21st  of  May, 
1861,  near  the  mouth  of  James  Kiver,  by  the 
United  States  ship  Monticello,  for  the  violation  of 
the  blockade  of  Richmond,  by  egress  from  that 
port,  v/hich  she  had  entered  prior  to  the  j)roclama- 
tion. 

Passing  over  the  incidental,  yet  interesting  ques- 
tions, which  were  raised  in  the  case,  as  to  notice  of 
the  blockade,  the  time  when  it  became  effective,  the 
time  allowed  neutral  vessels  to  depart,  and  the 
effect  of  taking  in  a  cargo  in  a  blockaded  port, 
after  notice  of  the  blockade ;  in  this  connection  it 
is  proposed  to  limit  quotation,  to  the  language  of 
the  court  in  discussing  and  deciding  the  fundamen- 
tal questions  involved  in  the  adjudication. 

Upon  these,  the  learned  judge  says  :  ^ 

Opinion  of  Mr.      "  The  authority  of  the  President  to  institute  the 

Justice  Dun-     iiit-t'itii  ~t       ,  i         ••, 

lop.  blockade,  is  denied  by  the  respondents,  who  insist 

that  this  power,  under  the  Constitution  of  the  Uni- 
ted States,  can  only  be  exercised  ]->y  the  national 
legislature.  And  this  is  the  first  question  to  be 
considered. 

"  It  is  true  no  department  of  the  Federal  govern- 


EIGHTS    AND    LIABILITIES    EESULTIjSTG    THEEJ:FR0]\L  49 

meut  can  exercise  any  power  not  expressly  confeiTed 

on  it  by  tlie  Constitution  of  tlie  United  States,  or 

necessary  to   give   effect   to  granted   powers ;    all 

others  are  reserved  to  the  states  respectively,  or  to 

the  people.     In  the  second  article,  second  section 

of  the  Constitution  of  the  United  States,  is  this 

provision  :  '  The  President  shall  be  commander-in-  ' 

chief  of  the  army  and  navy  of  the  United  States, 

and  of  the  militia  of  the  several  states,  when  called 

into  the  actual  service  of  the  United  States.' 

"  In  the  war  with  Mexico,  declared  by  Congress  to 
exist  by  the  act  of  Mexico  (see  9  Statutes  at 
Large,  page  9),  the  Supreme  Court  have  maintained, 
in  two  cases,  that  the  President,  vntfiout  any  act  of 
Congress^  as  commander-in-chief  of  the  ai'my  and 
navy,  could  exert  the  belligerent  right  of  levying 
contributions  on  the  enemy,  to  annoy  and  weaken 
him.  In  the  case  of  Fleming  et  al.  vs.  Page  (9 
Howard,  615),  the  present  Chief-Justice  says:  'As. 
commander-in-chief  he  is  authorized  to  direct  the 
movements  of  the  naval  and  military  forces,  placed 
by  law  at  his  command,  and  to  employ  them  in  the 
manner  lie  may  deem  most  effectual  to  harass  and 
conquer  and  subdue  the  enemy.'  Again,  at  page 
616:  'The  person  who  acted  in  the  character  of 
(Collector,  in  this  instance,  acted  as  such,  under  the 
authority  of  the  military  commander,  and  in  obe- 
dience to  his  orders,  and  the  duties  he  exacted,  and 
the  regulations  he  adopted,  were  not  those  prescrihed 
hy  law^  but  by  the  President^  in  Ms  character  of 
commander-in-cliief  The  custom-house  was  estab- 
lished in  an  enemy's  country  as  one  of  the  weapons 
of  war.  It  was  established,  not  for  the  purpose  of 
giving  the  people  of  Tamaulipas  the  benefit  of  com- 


50  THE   CIVIL    V,AR   IX   THE   UNITED    STATES. 

meree  with  the  United  States,  or  with  other  coun- 
tries, l)ut  as  a  measure  of  hostility,  and  as  a  part 
of  the  military  operations  in  Mexico ;  it  was  a  mode 
of  exacting  contributions  fi'om  the  enemy  to  support 
our  army,  and  intended  also  to  cripple  the  resources 
'  of  Mexico,  and  make  it  feel  the  evils  and  the  bur- 
dens of  the  war.  The  duties  required  to  b,e  paid, 
were  regulated  with  this  view,  and  were  nothing 
more  than  contributions  levied  upon  the  enemy, 
which  the  usages  of  war  justify,  when  an  army  is 
operating  in  the  enemy's  country.' 

"The  other  case  to  which  I  allude  is  Cross  et 
cd.  vs.  Harrison  (16  Howard,  189,  190).  Judge 
Wayne  in  delivering  the  opinion  of  the  Supreme 
Court,  says :  '  Indeed,  from  the  letter  of  the  secre- 
tary of  state,  and  from  that  of  the  secretary  of  the 
treasurv,  we  cannot  doubt  that  the  action  of  the 
military  governor  of  California  was  recognized  as 
allo^vable  and  lawful  by  Mr.  Polk  and  his  cabinet. 
We  think  it  was  a  rightful  and  cori-ect  recognition 
under  all  the  circumstances,  and  when  we  say  right- 
ful we  mean  that  it  was  constitutional,  although 
Congress  had  not  passed  an  act  to  extend  the  col- 
lection of  tonnage  and  import  duties  to  the  ports^of 
California.  California,  or  the  port  of  San  Fran- 
cisco, had  been  conquered  by  the  arms  of  the 
United  States  as  early  as  1846.  Shortly  after^^vard, 
the  United  States  had  military  possession  of  all  the 
Upper  California.  Early  in  1847  the  President,  as 
constitutional  comniander-iii-cliief  of  the  army  and 
navy,  authorized  the  militarv  and  naA^al  commanders 
of  our  forces  in  California,  to  exercise  the  Ijellio-- 
erent  I'ights  of  a  conqueror,  and  to  form  a  civil 
government  for  the  conquei-ed  country,  and  to  im- 


RIGHT]    AND    LIABILITIES    RESULTHSTG    THEREFROM.  51 

pose  duties  on  imports  and  tonnage  as  military 
contrihutions  for  the  support  of  tlie  government  and 
of  the  army,  wliicli  had  the  conquest  in  possession, 
&c.  No  one  can  doubt  that  these  orders  of  the 
President,  and  the  action  of  our  ^rmy  and  na\^ 
commanders  in  California,  in  conformity  with  them, 
was  according  to  the  law  of  arms,'  <fec.  (See  also 
pages  191,  193,  195,  196,201.) 

"  Blockade  is  a  belligerent  right  under  the  law  of 
nations  where  war  exists,  and  is  as  clearly  defined  as 
the  belligerent  right  to  levy  contributions  in  the 
enemy's  country.  As  the  Supreme  Court  hold  the 
latter  power  to  be  constitutionally  in  the  President, 
without  an  act  of  Congress,  as  commander-in-chief 
of  the  army  and  navy,  it  follows  necessarily  that  the 
power  of  blockade  also  resides  with  him ;  indeed  it 
would  seem  a  clearer  right,  if  possible,  because,  as 
chief  of  the  navy  nobody  can  doubt  the  right  of  its 
commander  to  order  a  fleet  or  a  ship  to  capture  an 
enemy's  vessel  at  sea,  or  to  bombard  a  fortress  on 
shore,  and  it  is  only  another  mode  of  assault  and 
injury  to  the  same  enemy,  to  shut  up  his  harbors, 
and  close  his  trade,  by  the  same  ship  or  fleet.  The 
same  weapons  are  used.  The  commander  only 
varies  the  mode  of  attack. 

"  In  the  1st  article,  §  8,  clause  11,  of  the  Con- 
stitution, under  the  legislative  head,  power  is 
granted  to  Congress  '  to  declare  war,  grant  letters 
of  marque  and  reprisal,  and  make  rules  concern- 
ing captures  on.  land  and  water.'  These  powers 
are  therefore  solely  confided  to  and  within  the  con- 
trol of  the  legislature,  and  cannot  be  exercised  by  the 
President.  The  President  cannot  declare  war,  grant 
letters  of  marque,  &c.,  though  all  other  belligerent 


52  THE    CIVIL    WAR   EST   THE    UJN^ITED    STATES. 

riglits,  arising  out  of  a  state  of  war,  are  vested  in 
him  as  commander-in-cliief  of  tlie  army  and  navy. 

"  But,  war  declared  by  Congress,  is  not  the  only 
war  within  the  contemplation  of  the  Constitution. 
•  In  clause  15,  art,  1,  §  8,  among  the  legislative  pow- 

ers is  this :  '  to  provide  for  calling  forth  the  militia 
to  execute  tlie  laws  of  the  Union,  suppress  insurrec- 
tions, and  repel  invasions,'  and  the  legislature,  in 
execution  of  this  j^ower,  passed  the  act  of  1795  (1 
Statutes  at  Large,  424),  vesting  in  the  President, 
under  the  terms  set  forth  in  the  statute,  discretion- 
ary power  over  the  militia,  in  the  cases  enumerated 
in  tlie  15th  clause  of  §  8,  article  1.  The  status  of 
foreign  nations  whose  provinces  or  dependencies  are 
in  revolution,  foreign  invasion  of  our  own  country, 
and  insurrection  at  home,  are  political  questions,  de- 
terminable by  the  executive  branch  of  our  govern- 
ment. I  refer  on  this  subject  to  the  following  cases 
in  the  Supreme  Court  of  the  United  States.  The 
Santissima  Trinidad  (7  Wheaton,  305)  : 

" '  This  court  has  repeatedly  decided  that  it  will 
not  undertake  to  determine  who  are  sovereign  states, 
but  will  leave  that  question  to  be  settled  by  the 
other  departments  who  are  charged  with  the  ex- 
ternal affairs  of  the  country,  and  the  relations  of 
peace  and  war.  It  may,  however,  be  said,  that  both 
the  judiciary  and  the  Executive  have  concurrfed  in 
affirming  the  sovereignty  of  the  Spanish  colonies 
now  in  revolt  against  the  mother  country.  But  the 
obvious  answer  to  this  objection  is,  that  the  court, 
following  the  executive  department,  have  merely 
declared  the  notorious  fact,  that  a  civil  war  exists 
between  Spain  and  her  American  provinces,  and 
this,  so  far  from  affirming,  is  a  denial  of  the  sove- 


EIGHTS    AND    LIABILITIES    EESULTIXG    THEEEFEOM.  53 

reigiity  of  tlie  latter.  It  would  be  3i public  and  not 
a  civil  war  if  tliey  were  sovereign  states.  Tlie  very 
object  of  the  contest  is  to  decide  whether  they  shall 
be  sovereign  and  independent  or  not ;  all  that  the 
court  has  affirmed  is  that  the  existence  of  this  civil 
war  gave  to  both  parties  all  the  rights  of  war  against 
each  other.' 

"  In  cases  of  invasion  by  a  foreign  power  or  insur- 
rection at  home,  in  which  cases,  under  the  act  of 
1795,  the  President  may  call  out  the  militia,  the 
Supreme  Coui't,  in  12  Wheaton  (case  of  Martin  vs. 
Mott)^  pages  29,  30,  says  it  is  exclusively  with  the 
President  to  decide  whether  the  exigencies  pro 
vided  for  have  arisen.  These  also  are  political 
questions,  determinable  by  the  Executive  alone^ 
and  the  courts  follow  that  branch  of  the  govern- 
ment. In  this  case,  at  page  32,  the  Supreme  Coiu't 
says :  '  It  is  no  answer  that  such  a  power  may  be 
abused,  for  there  is  no  power  which  is  not  suscep- 
tible of  abuse.  The  remedy  for  this,  as  well  as  for 
all  other  official  misconduct,  if  it  should  occur,  is  to 
be  found  in  the  Constitution  itself.' 

"  Whether  insurrection  has  grown  to  such  a  liead^ 
has  become  so  formidable  in  power,  as  to.  have  cul- 
minated in  civil  war,  it  seems  to  me  must  also  be- 
long, as  to  its  decision,  to  the  same  political  branch 
of  the  government.  The  President,  in  his  procla- 
mation relating  to  the  blockade  of  the  ports  of  the 
Confederate  States,  calling  out  seventy-iive  thousand 
militia  to  suppress  insurrection,  and  the  resistance 
to  the  Federal  laws,  alleges  '  that  nine  states  have 
so  resisted,'  and  have  '  threatened  to  issue  letters 
of  marque  to  authorize  the  bearers  thereof  to  com- 
mit assaults  against  the  vessels,  property,  and  lives 


54  THE    CI\'IL    WAK    IIST    THE   UNITED    STATES. 

of  citizens  engaged  in  commerce  on  the  bigli  seas 
and  in  the  waters  of  the  United  States ;  that  public 
property  of  the  United  States  has  been  seized, 
the  collection  of  the  revenue  obstructed,  and  duly 
commissioned  officers  of  the  United  States,  while 
engaged  in  executing  the  orders  of  their  superiors. 
have  been  arrested  and  held  in  custody  as  prisoners, 
or  have  been  imj)eded  in  the  discharge  of  their 
official  duties,  without  due  legal  process,  by  persons 
claiming  to  act  under  authorities  of  the  states  of 
Virginia  and  North  Carolina,  an  efficient  blockade 
of  the  ports  of  those  states  will  also  be  established.' 

"These  facts,  so  set  forth  by  the  President,  with 
the  assertion  of  the  rio-ht  of  blockade,  amount  to  a 
declaration  that  civil  war  exists. 

"Blockade  itself  is  a  belligerent  right,  and  can  only 
legally  have  ]3lace  in  a  state  of  war ;  and  the  noto- 
rious ftict  that  immense  armies,  in  our  immediate 
view,  are  in  hostile  array  against  each  other  in  the 
Federal  and  Confederate  States,  the  latter  having 
organized  a  government  and  elected  officers  to  ad- 
minister it,  attests  the  Executive  declaration  that 
civil  war  exists  ;  a  sad  Avai",  which  if  it  must  go  on, 
can  only  be  governed  by  the  laws  of  war,  and  its 
evils  mitigated  by  the  principles  of  clemency, .  en- 
grafted upon  the  war  code  by  the  civilization  of 
modern  times.  '• 

"  Nor  does  the  assertion  of  the  right  in  the  procla- 
mation of  the  19th  of  April,  1861,  to  proceed  against 
privateersmen,  under  the  laws  of  the  United  States, 
as  pirates^  militate  against  the  construction  I  have 
above  given,  of  the  two  proclamations  as  averring 
the  existence  of  civil  war. 

"  In  the  case  of  liose  vs.  Himely  (4  Cranch,  2Y2, 


EIGHTS    AND   LIABILITIES    EESULTING   THEREFEOM.  oO 

273),  Cliief-Justice  Marshall,  in  delivering  the  opinion 
of  the  court,  says :  '  It  is  not  intended  to  say,  that 
belligerent  rights  may  not  be  superadded  to  those 
of  sovereignty.  But  admitting  a  sovereign,  who  is 
endeavoring  to  reduce  his  revolted  subjects  to  obe- 
dience, to  possess  Tjoth  sovereign  and  belligerent 
rights,  and  to  be  capable  of  acting  in  either  charac- 
ter, the  manner  in  vrhich  he  acts  must  determine 
the  character  of  the  act.  If,  as  a  legislator,  he  pub- 
lishes a  la^v  ordaining  punishments  for  certain  of- 
fences, which  law  is  to  Tje  applied  by  courts,  the 
nature  of  the  law  and  the  proceedings  under  it,  will 
decide  whether  it  is  an  exercise  of  belligerent  rights, 
or  exclusively  of  his  sovereign  power ;  and  whether 
the  court,  in  applying  this  law  to  particular  cases, 
acty  as  a  prize  court,  or  as  a  court  enforcing  munici- 
pal  regulations.' 

"  lu  this  case  I  am  sitting  in  admiralty,  adjudging 
a  question  of  prize,  under  a  capture  for  alleged  vio- 
lation of  blockade. 

"  I  do  not  find,  on  examination  of  the  writers  on 
public  law,  any  difference  as  to  belligerent  rights,  in 
civil  or  foreign  war,  and  Judge  Story,  in  the  'Tth 
Wheaton,  as  heretofore  cited  by  me,  says  they  are 
the  same.  Blockade,  being  one  of  the  rights  inci- 
dent to  a  state  of  war,  and  the  President,  having  in 
substance  asserted  civil  war  to  exist,  I  am  of  opin- 
ion that  the  blockade  was  lawfully  proclaimed  by 
the  Executive." 

The  next  case  in  order  of  time  of  adiudication,  Case  of  The 
is  that  of  The  General  PcwMdll^  decided  in  the  Dis-  uii.   United 
trict  Court  of  the  United  States  for  the  Eastern  coun  for  fte" 
.District  of  Pennsylvania.  .^?f^'?J''^" 

»'  tnct  of  Penn- 

This  vessel  was  captured  on  the  12th  of  May,  syivama. 


56  THE    CIVIL    WAR   UST   THE   U]S"ITED    STATES. 

1861,  wliile  attempting,  as  alleged,  to  violate  tlie 
blockade  of  Charlestou,  South  Carolina,  and  sent 
for  adjudication  to  the  port  of  Philadelphia. 

The  claim  interposed  on  behalf  of  the  owners  of 
the  captured  property,  described  the  claimants  as 
"of  the  city  of  Charleston,  in  the  state  of  South 
Carolina,  and  citizens  of  the  United  States." 
Oi)iiiion  of  Mr.  "  They  are,"  says  the  court,  "  by  their  own  show- 
wa'iiader.^  iiig?  Commercial  residents  of  South  Carolina.  The 
question  which  thus  arises,  independently  of  that  of 
blockade,  is  whether,  in  the  present  hostile  relation 
of  South  Carolina,  a  resident  of  that  state  can  sus- 
tain a  proprietary  claim  of  restitution  in  a  prize 
court  of  the  United  States." 

The  general  proposition  established  in  the  law 
^  of  nations,  is  thus  clearly  stated  : — 

"  One  of  the  purposes  of  naval  warfare,  is  to 
diminish  the  power  of  hostile  governments,  or  of 
other  hostile  organizations,  by  the  indiscriminate 
maritime  capture  of  the  private  property  of  all  per- 
sons, residing  in  places  within  hostile  dominion,  or 
in  permanent  or  temporary  hostile  occupation.  The 
capture  and  confiscation  of  such  property,  by  de- 
stroying or  suppressing  the  maiitime  trade  of  such 
places,  diminishes,  and  thus  reduces  the  power  of 
their  hostile  rulers.  The  liberation  of  the  property 
when  captured,  whether  the  individual  residents 
who  owned  it  are  personally  well  or  ill  affected  in 
feeling  toward  the  government  of  the  captors, 
would  restore  its  value  in  wealth  to  the  hostile 
place." 

The  court  then  proceeds  to  enforce  this  doctrine, 
as  well  by  historic  illustration  as  l)y  citation  of 
judicial  authority,  showing  it  to  have  been  applied 


KICxHTS    AND    LIABILITIES    RESULTING    THEEEFEOM.  57 

equally  in  civil  as  in  public  or  international  war- 
fare, and  adds : 

"  If  during  an  organized  hostile  contest,  like  the 
present,  against  an  established  government,  rules 
of  decision,  different  from  those  which  have  been 
stated,  prevailed  in  the  prize  courts  of  such  a  gov- 
ernment, it  could  not  effectively  prosecute  maritime 
hostilities  to  supjiress  rebellion  or  insurrection. 

"  The  question  is,  whether  any  different  rules  of 
pul)lic  law  determine  the  question  of  confiscability, 
durino;  such  a  contest." 

The  learned  court  then  proceeds,  in  a  disquisition 
of  great  research  and  ability,  to  consider  the  vari- 
ous kinds  of  civil  war,  as  distinguished  by  the 
various  purposes  for  Avhich  they  are  waged,  in 
order  to  the  determination  of  the  question,  whether 
the  government,  in  resisting  its  opponents,  may, 
under  the  law  of  nations,  treat  the  contest  as  if  it 
•were  a  foreign  war,  and  the  places  in  the  possession 
of  the  insurgents,  as  if  occupied  by  public  enemies. 

In  this  connection,  is  cited  the  opinion  of  Gro- 
tius  upon  the  views  of  Demosthenes,  in  a  case  so 
singularly  analogous  to  the  one  under  discussion,  as 
to  give  to  that  opinion  not  only  a  peculiar  interest, 
but,  in  the  lanscnao-e  of  the  court,  "  the  force  of  a 
modern  precedent." 

"In  the  opinion  of  Grotius,  Demosthenes  had,  in 
the  case  of  the  Thracian  Chersonese,  correctly  stated 
the  rule  of  public  law  to  be,  that  wherever  judicial 
remedies  are  not  enforceable  by  a  government 
against  its  opponents,  the  proper  mode  of  restoring 
its  authority,  is  war.  (De  Jur.  Bel.  et  Pac.  Pro- 
leg.,  §  23.)  ^ 

"  The  Chersonese  was  a  dependency  of  Athens, 


58  THE    CIVIL    WAE   IN   THE   UNITED    STATES. 

wlien  otlier  parts  of  Thrace  were  under  the  domin- 
ion of  Macedonia.  The  city  of  Cardia,  in  tlie  Cher- 
sonese, resisted  the  Athenian  authority.  Deiopei- 
thes,  the  Athenian  commander  in  the  Chersonese, 
was  prevented  from  reducing  the  Cardians  to  sub- 
mission, through  the  interference  of  Philip  of  Mace- 
don — then  professedly  at  peace  with  Athens — who 
sent  a  military  force  to  their  assistance. 

"  Deiopeithes,  considering  this  measure  an  act  of 
hostility  on  the  part  of  Philip,  at  once,  without 
waiting  for  instructions  from  xVthens,  invaded  and 
ravaged  parts  of  Macedonian  Thrace. 

"  Philip  complained  to  the  Athenians  of  this  con- 
.  duct  of  Deiopeithes.  Demosthenes,  in  sustaining 
it,  avoided  assuming  a  defensiv^e  position  as  to  the 
previously  intended  suljjugation  by  Deiopeithes  of 
the  Cardians,  but  incidentally  justified  it,  upon  rea- 
sons that  would  have  sanctioned  the  prosecution  of 
hostilities  against  them,  on  the  same  footing  as  if- 
the  war  had  been,  as  to  them,  a  foreign  one, 

"  Dismissing  from  consideration  the  charges  against 
persons,  whom  the  judicial  administration  of  the 
laws  could  reach,  and  who  might,  at  any  time,  be 
judicially  prosecuted,  he  contrasted  their  case  with 
that  of  those  whom  the  laws  could  not  thus  reach, 
saying,  that  attempts  to  enforce  like  remedies  against 
them,  would  only  disorder  and  confuse  the  admin- 
istration of  public  affairs.  Against  those'  said  he, 
'  whom  tlie  laws  cannot  reach,  we  must  procee  1  as 
•  we  oppose  public  enemies,  by  levying  armies,  equip- 

ping and  setting  afloat  navies,  and  raising  contribu- 
tions for  the  prosecution  of  hostilities.' " 

The  peculiar  applicability  of  this  doctrine  to  the 
civil  war  in  the  United  States,  is  clearly  set  forth 


EIGHTS    AKD    LIABILITIES    RESULTING   THEEEFROM.  59 

by  a  designation  of  the  character  of  that  war,  in 
the  following  terms : 

"  The  exercise  of  the  established  jurisdiction  of 
the  government,  has  been  revolutionarily  suspended 
in  one  or  more  territorial  districts,  whose  willing  or 
unwilling  submission  to  the  revolutionary  rule, 
prevents  the  execution  of  the  suspended  govern- 
ment's laws  in  them,  except  at  points  occupied  by 
its  militar}^  or  naval  forces." 

The  court  then  proceeds  to  state :  "  The  rule  of 
the  common  law  is,  that  where  the  regular  course 
of  justice  is  interrupted,  by  revolt,  rebellion,  or  in- 
surrection, so  that  courts  of  justice  cannot  be  kept 
open,  civil  war  exists,  and  hostilities  may  be  prose- 
cuted on  th(;  same  footing,  as  if  those  opposing  the 
government  wereforeio;n  enemies  invadincj-the  land. 
The  converse  is  also  regularly  true,  so  that  when  the 
courts  of  a  government  are  open,  it  is  ordinarily  a 
time  of  peace.  But  though  the  courts  be  open,  if 
they  are  so  obstructed  and  overawed  that  the  laws 
cannot  be  peaceably  enforced,  there  might,  perhaps, 
be  cases  in  which  the  converse  application  of  the 
rule  would  not  be  admitted.  (1  Knapp,  346,  360, 
361  ;  1  Hale,  P.  C,  347  ;  Co.  Litt.,  249,  h.) 

"  The  present  case  is  one  in  which  the  coui-ts  are 
in  the  strongest  sense  closed.  That  such  a  Avar  as 
the  jiresent,  should  be  restricted  in  the  modes  of  its 
prosecution,  within  limits  more  narrow  than  for- 
eign wars,  would  prostrate  its  purpose,  and  place 
the  former  established  government  on  an  unequal 
footing  with  its  hostile  opponents.  The  doubt 
heretofore  suggested,  has  been,  whether  the  former 
government  has  not,  in  such  a  contest,  greater  bel- 
ligerent privileges  than  in  a  foreign  war. 


60  THE    CIVIL    WAE   i:S^   THE   UNITED    STATES. 

"  By  a  treaty  between  England  and  tlie  States 
General,  their  mercliant  vessels  might,  when  Eng- 
land was  at  war,  carry  her  enemy's  goods  without 
their  being  liable  to  capture.  In  the  war  of  Amer- 
ican independence,  it  was  decided  in  an  English 
prize  court,  that  this  treaty  did  not  exempt  the 
ships  and  goods  of  rebellious  Americans,  carried  in 
Dutch  merchant  vessels,  from  confiscability.  {The 
Aletta,  cited  1  Hay  and  Marriott,  13.)" 

In  ilbistration  of  the  doctrine,  discussed  at  some 
lengtli  in  the  first  edition  of  this  work,  that  a  nation 
while  engaged  in  the  performance  of  the  duty  of 
suppressing  a  domestic  insurrection,  which  aims  to 
overthrow  the  established  government,  may  law- 
fully exercise  belligerent  as  well  as  sovereign  rights, 
as  declared  by  Chief- Justice  Marshall,  in  the  case 
of  liorse  vs.  liimely^  the  learned  judge,  in  a  note  to 
his  opinion,  furnishes  a  valuable  recital  of  the  cir- 
cumstances, out  of  which  the  discussion  in  that  case 
grew,  and  elucidates  the  doctrine  which  was  laid 
down  and  not  questioned,  both  in  the  Supreme 
Court  of  the  United  States,  and  the  Supreme  Court 
of  Pennsylvania. 

It  is  the  doctrine  which  lies  at  the  foundatioti  of 
this  whole  discussion.  It  cannot  be  too  often  or 
too  emphatically  enforced. 

A  vast  deal  of  the  protracted  disputation  uj^on 
the  war  measures  of  various  kinds,  projDOsed  in 
either  house  of  the  Congress  of  the  United  States, 
at  its  last  session,  evinced  a  singular  want  of  appre- 
ciation of  this  fundamental  doctrine. 

The  following  is  the  text  of  the  note  to  which 
allusion  has  been  made  : 

"  During  the  civil  war  between  the  French  Re- 


EIGHTS    AXD    LIABILITIES    RESULTIXG    THEHEFEOM.  (H 

public  and  the  revolted  negroes  of  St.  Domingo,  tLe 
French,  having  been  driven  out  of  possession  of  the  i 

principal  part  of  the  island,  their  government  pro- 
hibited all  maritime  communication  with  places  on 
its  coast  occupied  by  the  rebels,  under  the  penalty 
of  confiscation  of  vessels  and  cargoes ;  and  aftei- 
ward  imposed  the  like  penalty  in  all  cases  in  ^A'liich 
vessels  going  to  or  from  such  places  might  be  cap- 
tured at  anchor,  or  under  sail  at  a  distance  of  less 
than  two  leagues  from  the  coast.  Merchant  vessels 
of  the  United  States  trading  with  such  places,  hav- 
ing been  captured  at  sea,  at  distances,  in  some  cases 
of  less,  and  in  others  of  more,  than  two  leagues  from 
the  coast,  were  alike  condemned  in  French  prize 
courts.  The  judges  of  the  Supreme  Court  of  the 
Unitecl  States,  agreed  in  opinion  that  the  French 
government's  ancient  sovereignty  over  the  colonv, 
must  be  considered  as  still  subsistino-.  That  France 
might  exercise  belligerent  rights  in  the  contest,  in 
addition  to  those  of  her  sovereignty,  was  asserted 
l)y  Chief- Justice  Marshall,  and  denied  by  no  other 
judge.  A  majority  of  the  judges  ultimately  differed 
from  him  in  opinion  upon  the  question,  whether,  if 
the  above  mentioned  acts  of  the  French  o'overnment 
were  to  be  considered,  not  as  belligerent,  but  as 
mere  municipal  regulations,  the  proprietorship  of  the 
former  owners  of  the  vessels  and  carg-oes  had  been 
divested  by  the  judgments  of  confiscation,  where 
the  captures  had  been  made  more  than  two  leagues 
fr^m  the  coast.  The  majority  of  the  court  was 
ult'mately  of  opinion  that,  whatever  might  have 
bec'n,  in  this  respect,  the  legal  character  of  the  regu- 
lations, the  proprietorship  had  been  changed  by  the 
judgments  in  these   cases,  as  well  as  in  those  in 


62  THE    CIYIL    WAE   IN   THE   UNITED    STATES. 

wliicli  tlie  captures  had  been  within  the  two  leagues. 
(4  Crauch,  513,  272,  293;  6  Crauch,  281,  285.) 
The  Supreme  Court  of  Pennsylvania  was  afterward 
of  opinion  that  the  property  had  been  changed  in 
both  cases.     Chief-Justice  Tilo-hman  considered  the 

O 

acts  of  the  French  Republic  as,  not  simple  munici- 
j)al  regulations,  but  municipal  regulations  'con- 
nected with  a  state  of  war  with  revolted  subjects,' 
in  enforcing  which  '  the  Republic  might  avail  itself 
of  all  rights  which  are  given  l)y  the  law  of  nations 
to  a  government  thus  circumstanced.'  He  said, 
'The  government  of  the  United  States  has  taken 
no  part  between  the  contending  parties.  It  has 
never  acknowledged  the  independence  of  the  revolt- 
ers.  We  are  not  at  liberty,  therefore,  to  consider 
the  island  in  any  other  liglit  than  as  part  of  the 
dominions  of  the  French  Republic.  But,  supposing 
it  to  be  so,  tlie  Hepuhlic  is  ]possessed  of  heUigerent 
rights,  which  may  be  exercised  against  neutral  na- 
tions who  carry  on  commerce  with  the  revolters. 
This  is  not  denied ^  but  it  is  said  that  the  words 
of  the  arrete  prove  that  there  was  no  intention  to 
exercise  such  rights.  This  argument  is  not  conclu- 
sive. Although  the  French  government,  from  mo- 
tives of  policy,  might  not  choose  to  make  mention 
of  war,  yet  it  does  not  follow  that  it  might  not 
avail  itself  of  all  rights  to  rohicli,  hy  the  laiu  of  na- 
tions, it  was  entitled  under  the  existing  circiimstances, 
under  the/orm  of  a  law  made  for  the  regulation  of 
the  trade  and  commerce  of  one  of  its  colonies. 
This  was  the  course  pursued  by  Great  Britain  in 
the  revolutionary  war  with  the  United  States  ; 
and  it  has  not  been  supposed  that  she.  violated  the 
law  of  nations,  when  she  captured  and  confiscated 


EIGHTS   AXD    LIABILITIES   KESITLTINa   THEKEFEOM.  63 

the  vessels  of  neutrals  who  carried  on  trade  with 
the  United  States,  in  whatever  part  of  the  ocean 
they  were  found  by  her  ships  of  war  and  cruisers. 
(3  Binney,  252,  253.)" 

The  court,  fi-om  this,  proceeds  to  an  elaborate 
and  very  learned  review  of  the  origin  of  the  juris- 
diction exercised  in  prize  cases,  for  the  purpose  of 
facilitating  the  application  of  the  authorities  and 
the  connate  doctrine  next  considered,  as  to  what  is 
regarded  by  such  courts  confiscable^  or  enemies  prop- 
erty ^  and  concludes  as  follows  : 

"  During  a  civil  war  against  an  established  gov. 
ernment,  the  phrase  enemies^ property,  as  understood 
in  prize  courts  of  this  government,  includes  all 
property  captured  at  sea,  which  is  actually  or  con- 
structively hostile.  During  the  civil  war  in  Portu- 
gal, between  the  Queen  and  Don  Miguel,  she  estab- 
lished a  blockade  of  ports  along  the  coast  of  her 
own  kingdom.  In  a  case  already  cited,  the  Supreme 
Tribunal  of  Marine  at  Lisbon,  having  condemned 
as  prize,  a  vessel  of  English  ownership,  which  had 
been  captured  Ibr  attempting  to  break  the  blockade, 
and  supply  Don  Miguel's  adherents  with  warlike 
stores,  it  was  held  by  a  Bi^tish  coiu-t,  in  the  year 
1836,  that  the  judgment  of  the  Portuguese  prize 
court,  whether  on  the  ground  of  an  attempted 
breach  of  blockade,  or  on  that  of  an  attempted  sup- 
ply  of  contraband  goods,  was  conclusive  proof  that 
the  vessel  was  owned  by  enemies  of  the  Queen  of 
Portugal,  though  Portugal  was  not  then  at  war 
with  any  foreia'u  government.  (3  Scott,  202,  203^ 
228;  2  Bingh.N.  C,  Y81,  782,  783,  798.)" 

"  At  the  time  of  the  Duke  of  Monmouth's  rebel- 
lion, in  1685,  the  goods'  of  rebels  which  were  cap- 


64  THE    CIVIL    WAR   IIN^   THE    UXITED    STATES. 

tured  at  sea,  appear  to  Lave  been  condemned  in 
England  as  prize,  in  the  Court  of  Admiralty.  (Hay 
and  ]\Iamott,  47,  48.)  Tliis  occurred  likewise  at  the 
rebellion  of  1715.  The  case  of  the  ship  Duke  de 
Vendome^  determined  in  1816,  was  cited  by  Sir 
George  Hay.     (Hay  and  Marriott,  47)." 

During  the  war  for  American  independence,  in 
the  reported  decisions  of  the  English  Admiralty 
Court,  the  successive  judges  exhibited  strong  desires 
to  find  reasons  for  exempting  from  confiscation,  the 
captured  property  of  persons  residing  in  the  United 
States,  who  adhered  to  the  British  cause.  But  by 
reference  to  these  decisions  (H.  &  M.,  46,  78,  80,  94, 
95,  83,  212,  216),  it  will  be  seen  that  both  Sir  George 
Hay  and  Sir  James  Marriott  condemned  all  the 
property  of  all  loyal  colonists,  except  such  as  they 
took  with  them  in  the  same  vessel  to  England. 

The  learned  judge  thus  briefly  disposes  of  the 
sole  remaining  objection  for  determination,  namely, 
that  the  President  had  no  authority,  without  pre- 
rious  concfressional  lesrislation,  to  direct  or  reo-u- 
late  the  prosecution  of  hostilities,*  because  such 
direction  and  regulation  could  only  be  exercised  when 
war  actually  exists,  and*  that  war  can  only  exist  as 
the  result  of  the  action  of  Cono-ress.  "■ 

"  This  objection,"  says  the  cornet,  "  is  insufficient. 
Any  nation  may  be  involved  in  a  war  which  has 
not  been  declared,  and  as  to  which  her  government 
has  not  legislated.  Judges  of  English  prize  courts 
have  agreed  with  Bynkershoek  in  the  opinion,  which 
pu1)licists  no  longer  dis])ute,  that  the  legal  conse- 
quences of  an  actual  war  must  be  the  same,  whether 
it  has  or  has  not  been  formally  declared.  The  only 
modern  intimations  of  a  contrary  opinion  as  to  a 


EIGHTS    AND    LIABILITIES    EESULTING    THEREFEOM.  65 

foreign  war  are  in  Stewart's  Reports,  pages  304  and 
414,  wMcli  I  consider  as  overruled,  in  1  Dodson, 
247.     (See  Hay  and  Marriott,  252,  253.) 

"In  the  course  of  the  argument pa?iial  war  with 
a  foreign  state  seems  to  have  been  somewhat  con- 
founded with  infor7nal  war.  A  partial  war  may  be 
informal,  or  may  be  more  or  less,  or  quite  formal. 
But  the  present  inquiry  does  not  involve  any  dis- 
tinctive doctrines  of  public  law  concerning  partial 
war.  Therefore,  the  cases  which  arose  under  acts 
of  Congress  authorizing  the  limited  hostilities  pros- 
ecuted against  France,  at  the  close  of  the  last  and 
commencement  of  the  present  century,  may  be  dis- 
missed from  consideration. 

"  In  1846,  when  Congress  was  in  session,  the 
United  States  were  involved  in  a  general  war  which 
was  informally  begun.  The  war  which  Mexico  had 
for  some  time  threatened,  then  broke  out  suddenly. 
Congress  thereupon  declared  that,  by  an  act  of 
Mexico,  a  state  of  war  existed  between  her  govern- 
ment and  the  United  States.  K  no  such  law  had 
been  enacted,  there  would,  not  the  less,  have  been 
war  with  Mexico.  The  President  must,  then,  as 
commander-in-chief  of  the  army  and  navy,  have 
directed  its  prosecution  conformably  to  the  rules  of 
public  law.  This  he  must,  at  all  events,  have  done, 
if  Congress  had  not  been  sitting  when  the  Mexicans 
attacked  our  army. 

"The  case  of  a  civil  war  is  practically  the  same. 
The  marshal  of  the  United  States,  in  order  to  keep 
the  peace  of  his  judicial  district,  and  enable  himself 
to  execute  the  process  of  the  courts,  may  arm  him- 
self and  his  deputies,  and  may  also  call  in  the  aid 
of  a  warlike  force.     (Year  B^.,  3  H.,  1  pi.  1,  5  Co., 


66  THE    CIVIL    WAE   EST   THE   UjNTITED    STATES. 

72,  a;  Br.  Riots,  pi  2  ;  Dalton,  cL  95 ;  8  Watts  & 
Serg.,  191 ;  5  Carr  &  P.,  254,  282.)  When  lie  can- 
not, by  such  means,  keep  the  peace  of  his  district, 
and  the  courts  in  it  no  longer  can  direct  their  j^ro- 
cess  to  him,  a  state  of  war  exists. 

"  The  President  in  such  a  case  is  required  by  the 
Constitution  to  '  take  care  that  the  laws  be  faith- 
fully executed.'  While  other  officers  only  swear  to 
support  the  Constitution,  his  official  oath,  as  pre- 
scribed in  it,  requires  him  '  to  the  best  of  his  ability' 
to  '  preserve,  protect,  and  defend  the  Constitution.' 
Therefore,  when  hostilities  actually  waged  against 
the  Constitution  and  laws,  assume  the  dimensions 
of  a  general  war,  he  must  prosecute  opposing  hos- 
tilities, oifensive  as  well  as  defensive,  upon  such  a 
proportional  scale  as  may  be  necessary  to  re-estab- 
lish, or  to  support  and  maintain  the  government. 

"  But  he  cannot  ^  make  '  rules  concerning  captures 
on  land  and  water.'  The  Constitution  has  vested 
this  power  in  Congress.  The  President  cannot  pros- 
ecute hostilities  otherwise  than  accordino;  to  the 
directions  of  existing  acts  of  Congress,  or  to  the 
rules  of  public  law.  Without  his  orders,  an  officer 
of  the  navy  capturing  this  vessel  would  have  per- 
formed a  lawful  act.  Had  the  President  forbidden 
her  capture,  the  officer  might  have  been  punishable 
for  disobedience  of  orders,  but  the  vessel  should  not 
for  that  reason  be  liberated  by  a  prize  court,  if  she 
was  in  law  confiscable. 

"  The  claim  is  rejected." 

The  next  case,  or  rather  series  of  cases,  were 

'  See  8  Cranch,  126  to  129,  427  ;  9  Cranch,  422,  and  the  Acts 
of  Congress  of  March  .Si,  1Y99,  eh.  45  ;  and  March  3d,  1813,  ch.  71. 


RIGHTS    AjSTD    LIABILITIES    RESULTLNG    THEREFROM.  67 

adjudicated  in  tlie  District  Court  in  New  York. 
And  here  it  is  proper  to  state,  that  these  adjudica- 
tions in  the  several  districts,  of  Columbia,  of  Penn- 
sylvania, of  New  York,  of  Massachusetts,  and  of 
Maryland,  were  so  nearly  simultaneous,  that  the 
eminent  judges  had  no  opj^ortunity  of  consultation, 
and  their  respective  opinions  may  therefore  be  re- 
garded as  independent  authorities  upon  the  impor- 
tant questions  submitted  to  them. 

It  is  for  this  reason,  superadded  to  that  of  the 
absorbing  interest  of  the  questions  themselves,  that 
a  more  liberal  quotation  fi'om  the  respective  opin- 
ions is  indulged  in,  than  might  l)e  desirable,  if 
either  of  the  learned  judges  had  been  controlled  in 
his  determination  by  the  precedent  of  the  other. 

The  cases  in  which  the  fundamental   questions  The  cases  of 
were  discussed  and  determined,  in  the  district  of  ^'l^g^oHh^'^'"' 
New  York,  were  ten  in  number,  and  as  follows :  Carolina, 

,  .  The  Pioneer, 

The  Hiawatha,  The  North  Carolina,  The  Pioneer,  The  Crenshaw. 
The  Cremhaiv,  The  Wimiifred,  The  Hannah  M.  S'Sfl'"' 
Johnson,  The  Lynchhiirg,  The  General  Green,  The  ^^/^[S' 
Hallie  Jackson,  and  The  Forest  I{^ing.  hun/,  The  Gen- 

-r^  ,     ,  1  •  1  1  J.         j_i  i?       ^'>'C-i  Green,  The 

By  consent,  they  were  considered  together,  so  tar  EaiueJaci: 


son. 


as  the  fundamental  questions   were  concerned,  as  ^j^/''''^^7trd 
one  case ;  but  the  utmost  latitude  of  discussion  was  states  District 

'  ^  T        n  Court  for  the 

accorded  by  the  court,  to  an  array  ot  counsel  or  Southern  dis- 
distinguished  ability,  who  represented  the  vast  y^^?^ -^^^^ 
pecuniary  interests  of  the  respective  claimants,  and 
the  questions  raised  w^ere  presented  by  them,  sev- 
erally, in  exhaustive  arguments  of  nine  days  dura- 
tion, and  were  subsequently  enforced  by  elaborate 
printed  briefs.  A  statement  of  the  facts  of  one  case 
will  suffice  for  all. 

The  ship  Hiawatha,  a  British  vessel,  arrived  in 


^■» 


68  THE    CIVIL    WAE   IN   THE   UNITED    STATES. 

the  James  River,  at  City  Point,  a  little  below  Ricli- 
mond,  on  a  voyage  from  Liverpool,  wdtli  a  cargo  of 
salt,  on  the  29th  of  Aj^ril,  1861,  one  day  2:>rior  to 
the  date  of  the  proclamation  of  Commodore  Pen- 
dergrast,  announcing  the  effectiveness  of  the  block- 
ade of  that  river,  which  was  ordered  by  the  Execu- 
tive proclamation,  of  the  19  th  of  April.  The 
voyage  of  the  ship  was  projected,  to  include  a 
return  to  Liverpool,  with  a  cargo  of  cotton  and 
tobacco.  Such  cargo  was  laden  on  board,  in  the 
blockaded  port,  on  and  after  the  11th  day  of  May 
ensuing,  and  on  the  16th  day  of  May,  the  same 
being  after  the  expiration  of  the  fifteen  days  from 
the  actual  establishment  of  the  blockade  (allowed 
to  neutral  vessels  to  leave  the  blockaded  ports,  as 
they  were  with  respect  to  cargo,  at  the  time  they 
first  knew  of  the  blockade),  the  ship,  with  her  cargo 
thus  laden  on  board,  commenced  her  voyage  out  of 
the  river,  and  was  captured  outside,  by  one  of  the 
blockading  vessels. 

As  will  be  seen  by  this  statement,  there  were  sub- 
ordinate questions  of  interest,  involved  in  this 
adjudication,  as  was  also  the  case  in  the  proceed- 
ings against  the  other  vessels.  These  ques^tions 
and  their  determination,  are  noticed  in  their  proper 
connection.  That  portion  only  of  the  opinion  of 
the  distinguished  judge  will  be  here  given,  which 
directly  relates  to  the  fundamental  questions  com- 
mon to  all  the  cases. 

After  a  brief  review  of  the  nature  and  character 
of  the  jurisdiction  and  proceedings  of  prize  courts, 
and  a  lucid,  preliminary  statement  of  the  points 
raised  and  presented  in  the  arguments,  the  learned 
judge  says : 


RIGHTS    AND    LIABILITIES    KESULTINa    THEEEFROM.  69 

"  It  is  insisted  on  tlie  part  of  tlie  defence,  tliat  OpJiion  of  Mr. 
the  President,  nnder  tlie  Constitntion,  liad  no  power, 
upon  the  facts  before  the  court,  to  institute,  de- 
clare, or  recognize,  by  executive  acts,  a  condition  of  '' 
war  between  the  United  States  and  the  insurgents 
and  their  forces,  which  will  carry  with  it,  in  behalf 
of  the  United  States,  the  incidents  of  a  public  war, 
in  relation  to  their  enemies  in  this  contest,  and  als^^ 
to  neutral  nations,  as  between  them  and  this  gov- 
ernment. As  consequent  to  that  position,  it  is 
urged  that  the  steps  taken  by  the  President  to  es- 
tablish a  blockade  of  ports  in  the  possession  of  the 
insurgents,  are  inoperative  and  void  to  that  end, 
because  the  insurgents  cannot  be,  within  the  mean- 
ing of  the  public  law,  enemies  of  the  United  States, 
but  are  only  citizens  of  the  same  country  in  a  state 
of  internal  and  domestic  contention ;  and  because 
the  President  has  no  authority,  under  the  Constitu- 
tion and  laws  of  the  United  States,  to  declare  and 
impose  a  l)lockade  of  any  port  or  place,  and  partic- 
ularly not  of  one  within  the  limits  of  the  United 
States ;  and  further,  that  the  preliminaries  and  con- 
ditions indispensable  to  a  valid  blockade,  by  the 
law  of  nations,  have  not  been  observed  and  fulfilled 
in  any  of  the  cases  now  on  hearing. 

"  It  is  first  to  be  observed  in  respect  to  the  general 
bearing  and  features  of  these  defences,  which  seem 
grounded  on  the  assumption  that  the  President  ini- 
tiated and  inaugurated  the  war  against  the  rebels 
or  insurgent  enemies,  that  no  public  or  private 
document  or  ofiicial  act  of  the  President  is  given  in 
proof,  conducing  to  show  that  the  existing  state  of 
hostilities  was  produced  by  any  authority  or  act  of 
the  government  of  the  United  States.     The  war,  so 


70  THE    CIVIL    WAE   IN   THE   U^HTED    STATES. 

far  as  the  government  have  been  proved  to  be 
actors  in  it,  and  so  far  as  the  evidence  characterizes 
it,  has  been  wholly  defensive,  and  in  protection  of 
the  property  and  existence  of  the  government  itself, 
and  in  no  particular,  up  to  the  captures  in  question, 
did  it  partake  of  the  character  of  an  oifensive  and 
aggressive  war,  in  its  conduct  on  the  part  of  the 
United  States. 

"  The  question  pressed  earnestly  during  the  discus- 
sion, whether  the  President,  without  the  authority 
of  Congress,  can  declare  or  initiate  an  offensive  war, 
therefore,  becomes  merely  speculative  on  the  merits 
of  the  debates.  The  inquiry  is,  if  he  is,  by  the 
Constitution  and  laws  of  the  country,  clothed  with 
power  to  defend  the  nation  against  an  aggressive 
war  waged  for  its  extermination  by  internal  ene- 
mies; and  if  so,  what  public  condition  in  relation 
to  the  belligerents  and  neutral  powers  results  from 
such  warfare. 

"  Much  stress  has  been  laid  in  the  progress  of  the 
argument  on  the  want  of  an  open  declaration  of 
war  by  the  President,  previous  to  his  adopting  and 
employing  forcible  means  to  repel  or  counteract 
warlike  measures  of  an  enemy,  persisting  in  hostile 
attacks  on  the  government  and  its  property. 

"  No  one  can  claim  as  a  right  that  a  public  declar- 
ation of  war  shall  be  promulgated,  unless  it  be  the 
nation  by  whose  government  it  is  made,  and  then  it 
serves  only  as  a  notice  to  their  own  citizens  or  sub- 
jects. The  declaration  by  manifestoes,  heralds,  or 
nuncios,  does  not  constitute  war,  and  the  omission 
of  the  declaration  can  no  wa}"  impair  its  justness  or 
efficacy,  especially  in  a  case  of  defensive  war.  (1 
Kent,  51,  54.     Wheat.,  on  Captures,  13,  15.     The 


EIGHTS    AND    LIABILITIES    RESULTING    THEREFEOM,  71 

JEliza  An?i,  1   Dod.'s  Eep.,  247  ;    Diipoiiceau,  on 
War,  chs.  1,  2.) 

"A  civil  war  of  alarming  proportions  was  waged 
with  extraordinary  forces  and  activity  ;  to  promote 
the  public  defence,  and  impair  the  resources  of  the 
enemy,  the  President  proclaimed  the  blockade  of 
the  ports  referred  to  in  the  pleadings  and  proofs 
before  the  court.  If  the  competency  of  a  foreign 
government  to  question,  in  a  prize  court,  the  power 
of  a  belligerent  to  institute  a  blockade  be  conceded, 
or  to  do  more  than  exact  a  strict  observance  of  pub- 
lic law  in  maintainino;  and  enforcing^  such  blockade 
by  the  belligerent  who  imposes  it,  I  am  not  con- 
vinced by  the  proofs  or  argument  adduced  in  oppo. 
sition  to  the  cases  on  trial,  that  the  lawfulness  or 
efficiency  of  the  blockade  established  have  been  im- 
peached. I  hold,  in  time  of  civil  war,  of  insurrec- 
tion, and  rebellion,  the  nation  assailed  and  attacked 
by  hostile  and  rebel  forces,  may  rightfully  resist 
war  levied  against  itself,  alike  by  closing,  embargo- 
ing, or  blockading  ports  held  by  their  enemies,  as  a 
means  of  war  calculated  to  weaken  and  defeat  hos- 
tile oj^erations  to  its  detriment,  as  to  accomplisli 
the  end  by  direct  force  and  superior  power ;  and 
that  no  sound  distinction  exists  whether  such  defen- 
sive proceedings  are  employed  in  civil,  internal,  or 
domestic  warfare,  or  war  between  nations  foreign  to 
each  other.  Under  the  law  of  nations,  the  rights 
incident  to  a  war  waged  by  a  government  to  sub- 
due an  insurrection  or  revolt  of  its  own  subjects  or 
citizens,  are  the  same  in  regard  to  neutral  powers  as 
if  the  hostilities  were  carried  on  between  independ- 
ent nations,  and  apph^  equally  in  captures  of  prop- 
erty  for   municipal   offences,  or   as   prize   of  war 


72  THE    CIVIL    WAR    IN   THE    UE^ITED    STATES. 

{Rose  VS.  Himely^  4  Cranch,  241.  Ihid.^  appendix, 
509.  S.  C.  in  Circuit  Court,  4  Ihid.^  293.  Hudson 
vs.  Gustien^  1  Wheat.,  306,  Santissima  Trinidada. 

"  Commercial  ports,  in  time  of  war,  may  become 
efficacious  allies  to  an  enemy  holding  them,  through 
neutral  trade.  So  far  as  that  aid  avails  the  enemy, 
it  is  warlike  in  its  nature,  and  may  be  repelled  by 
war  means.  Blockade  is  the  measure  recognized 
by  the  law  of  nations  as  the  appropriate  remedy, 
and  that  in  character  and  operation  is  peaceful  as 
to  neutrals,  and  warlike  in  respect  to  the  enemy. 
The  President,  as  commander-in-chief  of  the  army 
and  navy,  is  the  functionary,  under  our  govern- 
ment, who  has,  as  incident  to  his  office,  the  power 
and  right  to  exercise  the  i-esisting  and  repelling 
means  of  leaitimate  warfare,  whenever  the  exio-en- 
cies  of  the  case  require  them. 

"  It  certainly  can  be  of  no  consequence  whether 
the  ports  blockaded  belong  technically  or  in  reality 
to  the  United  States,  or  were  the  property  of  indi- 
viduals, innocent  of  any  warlike  purposes  against 
the  United  States,  or  of  aidino;  its  enemies.  It  is 
sufficient  if  the  evidence  shows  the  ports  to  be 
under  the  power  and  use  of  enemies  of  the  United 
States.  This  use  may  be  an  usurped  one,  anU  in 
wrong  of  the  actual  proprietary  authority  of  the 
places.  The  right  of  the  United  States  to  prevent 
such  use  being  turned  to  their  prejudice,  rests  not 
at  all  upon  the  character  of  the  true  ownership  and 
rightful  authority  over  the  places,  but  on  that  of 
their  employment  by  the  occupants.  Whilst  under 
the  military  power  of  an  enemy  it  is  enemy's  terri- 
tory. (  U.  S.  vs.  a  ice,  4  Wheat.,  253.  This  consid- 
eration  meets,   also,    another   ground   of    defence, 


RIGHTS    AND    LIABILITIES    RESULTING    THEREFROM.  73 

earnestly  ui'ged  on  tlie  part  of  tlie  claimants,  tliat 
these  various  ports  wliicli  are  subjected  to  block- 
ade are  portions  of  states  of  the  Union,  and,  as 
such,  a  portion  of  the  Union  itself,  and  cannot, 
therefore,  be  made,  territorially,  objects  of  hostile 
control,  but  only  of  municipal  regulation  and  gov- 
ernment. Nor  that  more  eminently  can  they  be- 
come, as  countries  or  people,  enemies  of  the  govern- 
ment of  which  they  are  constituent  parts ;  because, 
in  that  relation,  they  also  hold  an  independent 
sovereignty  as  states,  which  cannot  be  infringed 
nor  molested  by  authority  of  the  United  States, 
acting  directly  upon  that  independency. 

"  The  Union  is  not  composed  of  subtleties  and 
abstractions.  The  notion  of  a  government  con- 
structed of  numerous  parts,  each  part  separate  and 
sovereign  in  itself,  and  also  sovereign  of,  or  as 
against  the  whole,  was  never  adopted  or  declared 
by  the  founders  of  the  Constitution,  and  probably 
not  contemplated  or  comprehended  at  that  day. 

"  The  officers  of  the  United  States  government,  act 
within  particular  states,  to  enforce  or  defend  the 
laws  of  the  United  States  the  same  as  if  no  state 
demarcation  existed.  The  whole  extent  of  the 
country  is  one  nation  and  one  government.  In 
respect  to  the  United  States  and  its  constitutional 
laws,  there  are  no  state  lines,  and  state  sovereignty 
is  a  nonentity. 

"  The  denominations  of  states  existing  for  local 
and  domestic  purposes,  are  made  use  of  and  apj)lied 
by  the  insurgents  in  the  present  war,  in  designation 
of  combinations  of  persons  disrupted,  so  far  as  they 
had  material  or  political  power  so  to  do,  from  their 
citizenship  of  and  subjection  to  the  government  of    , 


74  THE    CIYIL    WAR   IIST   THE    UNITED    STATES. 

tlie  Uuited  States,  in  disavowal  and  defiance  of  that 
allegiance,  and,  so  far  as  tlieir  own  purposes  and 
acts  can  fix  tlieir  political  status,  make  themselves 
as  alien  and  foreign  from  the  United  States  gov- 
ernment, as  if  they  assumed  the  name  of  citizens 
and  subjects  of  various  states  of  Mexico  or  South 
America. 

"They  thus  make  themselves  avowed  enemies,  and 
wage  war  against  the  United  States  to  accomplish 
its  dismemberment  and  destruction.  It  can  be  of 
no  consequence  under  what  name  or  appellation 
those  enemies  unite  and  act,  whether  as  states, 
secessionists,  southerners,  or  slaveholdei's  ;  they  are, 
in  every  just  contemplation  of  our  system  of  govern- 
ment, insurgents  and  rebels  against  a  common  gov- 
ernment, and  wao'ino;  war  for  its  overthrow. 

"  The  organism  of  states  which  furnishes  a  form  of 
government  for  j)eaceful  and  domestic  purposes  is 
thus  sought  to  be  perverted  by  the  insurgents  into 
alien  sovereignties,  which  may  exercise,  under  the 
familiar  name  of  states,  independent  and  coequal 
capacities  with  the  national  government.  Such 
names  or  pretensions  can  have  no  effect  to  change 
the  intrinsic  nature  of  thino;s,  and  transform  the 
residents  of  particular  states  into  any  thing  else 
than  citizens  and  subjects  of  the  United  States,  and, 
as  such,  subordinate  to  its  Constitution  and  laws. 

"  But,  by  the  instrumentality  of  the  j)retences  and 
means  employed,  the  insurrection  has  become  devel- 
oped into  a  hostile  power  of  great  magnitude  and 
force,  disavowing  all  unity  with  or  subordination  to 
the  mother  country,  and  taking  to  itself  the  attri- 
•  butes  of  a  distinct  nationality.  It  thus  discards  all 
common  rights  under  the  Federal  government,  and, 


EIGHTS   ANB    LIABILITIES   EESULTING   THEKEEEOM.  Y5 

by  force  of  arms,  wages  war  to  establisli  one  over- 
powering that  of  tlie  parent  nation.  Tliey  become 
enemies  of  the  United  States  government  by  open 
hostilities  waged  against  it,  without  losing  their 
subjection  to  it  individually  as  citizens.  Govern- 
ment represses  their  rebellion  and  treason  legiti- 
mately, by  force  of  arms  and  war,  because  the  mag- 
nitude and  force  of  the  revolt  is  beyond  the  control 
of  the  law  and  civil  magistracy.  To  that  end,  all 
the  constitutional  powers  of  the  President,  in  his 
capacity  of  commander-in-chief  of  the  army  and 
navy,  may  be  rightfully  called  into  exercise.  They 
confront  the  government  in  masses  of  armed  men, 
holding  fortified  posts,  or  ports  of  trade  and  general 
commerce,  and  they  thus  become  belligerents  and 
enemies  of  the  nation,  against  whom  all  the  means 
of  war  allowed  by  the  law  of  nations  may  be  right- 
fully employed,  as  was  held  by  the  Supreme  Court 
in  the  case  of  the  St.  Domingo  insurgents.  (4 
Cranch,  241.)  For  the  reasons  hereafter  suggested, 
I  forbear  adding  a  further  support  by  citation  of 
authorities,  than  reference  to  a  very  few  upon  funda- 
mental points,  and  taken  generally  from  decisions 
in  our  own  courts. 

"  In  my  judgment,  therefore,  every  branch  of  the 
general  defences  set  up  against  these  suits  is  inade- 
quate and  insufficient  in  law  and  fact  to  bar  the 
prosecutions  pending.  I  consider  that  the  out- 
breaks in  particular  states,  as  also  in  the  Confeder- 
ate States,  was  an  open  and  flagrant  civil  war, 
waged  against  the  United  States  by  the  insurgents 
in  the  several  disaffected  states,  referred  to  in  the 
pleadings  and  proofs  in  these  several  causes,  at  the 
time  the  several  proclamations,  so  also  referred  to 


76  THE   CIVIL    WAR   IF   THE   UNITED    STATES. 

and  named,  were  issued  and  made  by  tlie  President : 
That  such  insurrection  was  maintained  by  warlike 
means  and  forces  too  powerful  to  be  overcome  or 
restrained  by  the  civil  authority  of  the  government, 
and  that  it  became  lawful  and  necessary  to  resist 
and  repel  hostilities  so  levied  against  the  United 
States  and  its  laws,  by  aid  of  the  arniy  and  navy 
of  the  United  States:  That  the  President  pos- 
sessed full  competency,  under  the  Constitution  of 
the  United  States,  and  the  existing  laws  of  Con- 
gress, to  call  into  service  and  emj^loy  the  land  and 
naval  forces  of  the  United  States,  in  the  manner 
they  were  used  by  him,  for  the  purpose  of  main- 
taining the  peace  and  integrity  of  the  Union,  and 
*  putting  down  hostilities  waged  against  them ;  and 
the  President  had,  rightly,  power  to  establish  block- 
ades of  ports  held  by  those  enemies,  and  enforced 
such  blockades  pursuant  to  the  law  of  nations." 

The  intelligent  reader  will  find  nothing  to  regret 
in  the  length  of  the  preceding  quotation. 

In  thought  and  expression  it  is  alike  character- 
istic of  its  distin2:uished  author. 

His  cotemporaneous  decisions  in  the  law  of  mari- 
time capture— with  this  opinion  upon  the  great  fun- 
damental questions  involved  in  all  his  adjudications, 
will  be  preserved  as  instructive  precedents,  and  as  val- 
uable memorials  of  the  vigorous  and  comprehensive 
intellect  of  him  who  has  long  been  one  of  the  bright- 
est ornaments  of  the  Federal  judiciary. 

The  case  of 

The  F.  w.  The  next  case  to  be  considered  is  that  of  The  F. 
District  Court'  W.  Jolinson^  decided  in  the  United  States  District 
S'ity^anf '  Court  for  the  district  of  Maryland. 


EIGHTS    AXD   LIABILITIES    RESULTING    THEEEFROM.  77 

This  vessel  was  captured  for  an  alleged  violation 
of  the  blockade  of  the  port  of  Norfolk,  in  Virginia, 
and  as  enemy's  property,  being  owned  by  a  citizen 
of  Norfolk. 

The  questions  raised  in  the  preceding  cases,  were 
here  discussed  with  great  ability,  l)y  distinguished 
counsel. 

In  disposing  of  them  the  learned  judge  says : 

"  It  has  been  contended  by  the  counsel  for  the  Opinion  of  Mr. 
claimants  tliat,  in  the  joresent  unhappy  division  in '  ^^^^^^  ^^  ®^' 
our  country,  the  government  at  Washington  has  no 
power,  either  under  the  Constitution  of  the  United 
States,  or  by  the  recognized  princij)les  of  the  law 
of  nations,  to  treat  the  inhabitants  of  the  states 
which  claim  to  have  seceded,  as  enemies,  and  to  ex- 
ercise in  reference  to  them  those  belligerent  rights 
which  all  concede  belong  to  parties  engaged  in  a 
public  war.  And,  by  a  public  war,  is  here  meant  a 
war  l^etween  independent  sovereign  states.  Now, 
I  am  sitting  in  this  case,  in  a  prize  court,  and  the 
Supreme  Court  said  (the  case  of  The  Raijid^  8 
Cranch's  Reports,  155,  and  the  schooner  Adeline 
and  cargo,  9  Cranch,  264),  '  that  the  law  of  prize  is 
a  part  of  the  law  of  nations.'  And  I  am,  therefore, 
to  decide  this  question  by  the  princij^les  of  that 
universal  law,  to  which  all  civilized  princes  and 
states  acknowledge  themselves  to  be  subject. 

"  In  the  first  place,  let  us  see  what  is  the  character 
of  the  present  contest  in  this  country,  and  in  what 
light  it  has  been  regarded  by  the  executive  and 
legislative  departments  of  the  government.  In  the 
face  of  all  that  is  passing  around  us,  it  needs  no 
argument  to  show  that  a  civil  war  of  gigantic 
dimensions  is   sweeping  over  the  land.     We   are 


78  THE    CIVIL   WAE   IJS"   THE   UNITED    STATES. 

almost  within  sound  of  tlie  cannon  of  two  of  the 
largest  armies  that  have  ever  been  marshalled  in 
hostile  array  against  each  other  on  this  continent. 
More  than  one-third  of  the  confederacy  has  claimed 
to  separate  from  the  rest,  and  they  are  now  fighting 
about  the  construction  of  the  organic  instrument  of 
the  o;overnment — one  side  alleo-ins;  that  under  a 
true  construction  of  the  Constitution,  each  state  has 
a  right  to  withdraw  from  the  Union  whenever  its 
people  so  determine ;  the  other,  that  no  such  right 
exists,  and  that  to  attempt  to  secede  is  rebellion, 
and  not,  the  exercise  of  any  constitutional  right. 
And  in  the  states  which  have  claimed  the  rio-ht  to 
withdraw,  there  are  now  open  no  courts  of  the 
United  States,  and  the  laws  of  the  United  States 
cannot  now  be  executed  in  those  states,  by  the 
ordinary  course  of  judicial  proceedings. 

"  Is  this  not  civil  war  ?  And  has  it  not  been  so 
regarded  by  the  executive  department  of  the  gov- 
ernment ?  This  is  clear  from  the  proclamations  of 
the  President  of  the  15th  of  April,  of  the  19th  of 
April,  of  the  27th  of  April,  of  the  3d  of  May,  and 
of  the  10th  of  May,  all  recognizing  the  fact  that  the 
civil  power  of  the  government  is  no  longer  capable 
of  enforcing  the  laws,  and  calling  to  its  kid  the 
power  intended  to  be  provided  by  the  acts  of  1795 
and  1807,  and,  also,  using  the  power  of  blockade, 
a  war  j)ower  belonging  only  to  belligerents  either 
in  a  civil  or  foreign  war.  And  the  legislative  de- 
partment has  also  recognized  this  contest  as  a  war. 
For,  during  the  last  session  of  Congress,  it  not  only 
did  so  by  the  laws  which  it  passed  for  the  raising 
of  armies  and  providing  means  for  their  support, 
but  in  express  language,  on  (four)  different  occa- 


EIGHTS   AND    LIABILITIES   KESULTING   THEEEFEOM.  79 

sions,  as  will  be  seen  by  reference  to  tlie  laws  of  tlie 
extra  session  of  July  last,  pages  268,  274,  315  and 
326.  And  the  last  law  (p.  326),  to  whicli  I  refer, 
not  only  recognized  a  war  as  existing,  but  it  ap- 
proved and  sanctioned  all  the  proclamations  of  the 
President,  thereby  making  valid  the  blockade  de- 
clared by  the  President  in  his  proclamations  of  the 
19th  and  27th  of  April,  if  the  President  alone,  ^as 
comtncmder-in-cldef  of  tlio  army  and  navy  of  the 
United  StatesJ  did  not  possess  this  power  under 
the  existing  circumstances  of  the  country. 

"  The  Supreme  Court  (Chief-Justice  Taney  deliv- 
ering the  opinion)  in  the  case  of  Luther  vs.  Borden 
and  others,  7  Howard,  45,  say :  '  Unquestionably  a 
state  may  use  its  military  power  to  put  down  an 
armed  insurrection,  too  strong  to  be  controlled  by 
the  civil  authority.  The  power  is  essential  to  the 
existence  of  every  government,  essential  to  the  pres- 
ervation of  order  and  free  institutions,  and  is  as 
necessary  to  the  states  of  the  Union  as  to  any  other 
government.  The  state  itself  must  determine  what 
degree  of  force  the  crisis  demands,  and  if  the  gov- 
ernment of  Rhode  Island  deemed  the  armed  oppo- 
sition so  formidable,  and  so  ramified  throughout 
the  state,  as  to  require  the  use  of  its  military  force, 
and  the  declaration  of  martial  law,  we  see  no 
ground  upon  w^hich  the  court  can  question  its 
authority.  It  was  a  state  of  toar,  and  the  estab- 
lished government  resorted  to  the  rights  and  usages 
of  war  to  maintain  itself  and  overcome  the  unlaw- 
ful oj)position.' 

"  Now  what  say  the  writers  on  the  law  of  nations  ? 
Vattel  says,  in  book  3d,  ch.  18,  p.  425,  'When  a 
party  is  formed  in  a  state  who  no  longer  obey  the 


80  THE   CIVIL   WAE   IX    THE    U:^riTED    STATES. 

sovereign,  and  are  possessed  of  sufficient  strength 
to  oppose  liim,  or  where,  in  a  republic,  the  nation 
is  divided  into  two  opposite  factions,  and  both  sides 
take  up  arms,  this  is  called  a  civil  war.  Some 
writers  confine  this  term  to  a  just  insurrection 
agMinst  their  sovereign,  to  distinguish  that  lawful 
resistance  from  rebellion  which  is  open  and  unjust 
resistance, 

"  '  But  what  appellation  will  they  give  to  a  war 
which  arises  in  a  republic  torn  by  two  factions,  or 
in  a  monarchy,  between  two  competitors  for  the 
crown?  Custom  appropriates  the  term  civil  war 
to  every  war  between  the  members  of  one  and  the 
same  j)olitical  society.' 

"And  Wheaton,  in  his  great  work  on  international 
law,  says,  on  l3age  365  :  "  A  civil  war  between  the 
different  members  of  the  same  society,  is  what  Grro- 
tius  calls  a  mixed  war.  It  is,  according  to  him, 
public  on  the  side  of  the  established  government, 
and  private  on  the  part  of  the  peojDle  resisting  its 
authority.  But  the  general  usage  of  nations  regards 
such  a  war  as  entitling  the  contending  parties  to  all 
the  rights  of  war  as  against  each  other,  and  even 
as  respects  neutral  nations.' 

"  Judge  Chase,  of  the  Supreme  Court,  in  the  case  of 
Ware  vs.  Hilton  and  others^  3  Dallas,  199,  speaking 
of  the.  effect  of  the  act  of  the  Virginia  Convention, 
in  June,  17Y6,  and  the  declaration  of  independence 
by  Congress,  on  the  4th  of  July  following,  says : 
'Before  these  solemn  acts  of  separation  from  the 
crown  of  Great  Britain,  the  war  between  Great 
Britain  and  the  United  Colonies,  jointly  and  sep- 
arately, tvas  a  civil  war ;  but  instantly,  on  the 
great  and  ever  memorable  e\'ent,  the  war  changed 


EIGHTS    AJSTD    LIx'lBILITEES    EESULTIJTG    THEEEFEOM.  81 

its  nature  and  became  a  puBlic  war  between  inde- 
pendent governments ;  and  immediately  thereupon 
all  the  other  rights  of  an  independent  nation 
attached  to  the  government  of  Virginia.' 

"  Whether  the  learned  judge  be  correct  in  his 
view,  that  the  w^ar  became  a  pvMic  war  after  the 
declaration  of  independence,  a  view  he  may  be  ex- 
cused from  taking,  if  wrong,  as  his  own  name  was 
appended  to  that  imperishable  document,  we  have 
the  sanction  of  his  great  name  to  the  doctrine,  that 
to  such  a  contest  there  belon^-ed  all  the  rio-hts  of  war. 

"  I  am  therefore  clear  in  the  opinion,  that,  as  a 
blockade  is  an  acknowledged  belligerent  right 
under  the  law  of  nations,  Avhere  war  exists,  the 
blockade  of  the  southern  ports  was  lawfidly  pro- 
claimed by  the  President. 

"  In  the  discussion  of  this  question,  I  have  said 
nothing  in  reference  to  the  sovereign  rights  of  the 
government :  whether  it  may  not  at  the  same  time 
exercise  both  sovereign  and  belligerent  rights. 
Such  a  question  does  not  arise  in  the  case.  I  have 
confined  myself  to  the  examination  of  the  existence 
or  not  of  belligerent  rights  by  the  .government,  in 
reference  to  the  present  unfortunate  state  of  the 
country. 

"  And  Phillimore,  in  his  commentaries  on  interna- 
tional law,  vol.  3d,  page  740,  gives  us  a  simple  rule 
by  which  to  determine  this  question.  He  says : 
'  In  the  case  of  a  civil  war,  the  English  law  fur- 
nishes a  good  criterion  as  to  whether  the  country 
is  to  be  considered  at  peace  or  at  war — that  when- 
ever the  king's  courts  are  open  it  is  a  time  of  peace, 
in  ludo-ment  of  law.' 

•J  O 

"  Judged  l)y  this  standard,  then,  as  the  Federal 

6 


82  THE    CIVIL    WAll    IX    THE   UNITED    STATES. 

courts  are  closed  in  tlie  Southern  States,  there  is  ^ 
a  state  of  civil  war.  And  the  government  is  remit- 
ted to  its  belligerent  rights,  to  be  exercised  in 
accordance  with  those  maxims  of  humanity,  mode- 
ration,  and  honor  which  the  law  of  nations  has  pre- 
scribed to  be  observed  by  both  parties  in  every 
civil  war." 

The  case  of        The  last  case  to  be  considered,  but  by  no  means 

Warwick.       the  least  in  interest  and  importance,  in  view  of  the 

Coifrtfoftl^e  eminent  character  and  ability  of  the  counsel,  by 

District  of      whom  the  aro-uments  were  conducted,  and  the  o-reat 

learning  of  the  distinguished  judge,  to  whom  they 

were    addressed,  is   that    of  the   Amy    Warivich^ 

which  was  decided  in  the  District  Court  of  the 

United  States  for  the  district  of  Massachusetts. 

The  vessel,  with  a  cargo  of  coffee,  sailed  from 
Rio  de  Janeiro  (tn  the  29th  of  May,  1861,  bound 
for  Hampton  Roads,  and  was  captured  on  the  10th 
of  Jnly,  by  the  United  States  cruiser  Quaker  City^ 
and  sent  to  the  port  of  Boston  for  adjudication,  as 
prize  of  war,  in  the  district  of  Massachusetts. 

Condemnation  was  claimed  on  the  ground  that 
the  prize  was  enemy's  property,  being  owned  by 
citizens  of  Richmond,  in  the  state  of  Virginia. 

After  a  brief  consideration  of  the  established 
rules  and  principles  in  the  law  of  nations,  as  to 
what  shall  be  deemed  enemy's  property,  the  learned 
juilge  proceeds  at  once  to  the  discussion  of  the 
great  questions  at  issue.  It  is  here  given  in  its  en- 
tiret}'.  iSTot  to  do  so,  would  be  doing  injustice  to 
one  of  the  ablest  judicial  disquisitions  upon  the 
legal  character  of  the  civil  war  in  the  United  States, 
proceeding  from  a  judge  whose  long  experience,  and 


?ue. 


EIGHTS    AND    LIABILITIES    RESULTING    THEKEFEOM.  83 

exalted  reputation  as  a  jurist,  give  to  his  opinions 
the  weight  of  authority : 

"But  it  is  contended  that  althouo-h  this  property  Opinion  of 

ilr  Justice 

might  be  liable  to  confiscation  if  the  contest  were  a  spragu 
foreign  war,  yet  that  it  is  otherwise  in  a  rebellion 
or  civil  war.  This  requires  attention.  As  the  Con- 
stitution gives  Congress  the  power  to  declare  war, 
some  have  thought  that  without  such  previous  dec- 
laration, war  in  all  its  fulness,  that  is,  carrying  with 
it  all  the  incidents  and  consequences  of  a  war,  can- 
not exist.  This  is  a  manifest  error.  It  ignores  the 
fact  that  there  are  two  pai'ties  to  a  war,  and  that 
it  may  be  commenced  by  either.  If  a  foreign  nation 
should  send  its  fleets  and  armies,  to  capture  our 
vessels,  ravage  our  coast,  and  invade  our  soil,  would 
not  this  be  war — giving  to  the  United  States,  as  a 
nation,  the  position  and  rights  of  a  belligerent  % 

"  Such  hostilities  would  impose  upon  the  President 
the  duty  of  exerting  all  his  powers,  as  commander- 
in-chief  of  the  army  and  navy,  to  capture  or  destroy 
the  enemy,  and  if,  under  his  instructions,  an  enemy's 
ship  should  be  taken  and  sent  in  for  adjudication, 
the  prize  court  must  proceed  to  decide  the  question 
of  prize  upon  the  principles  of  public  law. 

"  How  this  civil  war  commenced,  every  one  knows. 
A  traitorous  confederation,  comprising  several  or- 
ganized states,  after  seizing  by  force  several  forts 
and  custom-houses,  attacked  a  fortress  of  the  United 
States,  garrisoned  with  their  soldiers,  under  the 
sanctity  of  their  flag,  and  by  superior  military  force 
compelled  those  soldiers  to  surrender,  and  that  flag 
to  be  lowered.  This  was  war — open,  flagrant,  flagi- 
tious war ;  and  it  has  never  ceased  to  be  waged  by 
the  same  confederates,  with  their  utmost  ability. 


84  THE    CIVIL    WAE   IN    THE   UNITED    STATES. 


"  Some  have  tlioug-lit  tliat  because  the  rebels  are 
traitors,  their  hostilities  cannot  be  deemed  war,  in 
the  leo;al  or  constitutional  sense  of  .that  term.  But 
without  such  war,  there  can  be  no  traitors.  Such 
is  the  clear  lang^uao-e  of  the  Constitution.  It  declares 
that  treason  against  the  United  States,  '  shall  con- 
sist only  in  levying  war  against  them ;  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and 
comfort.'  Some  have  aj)prehended  that,  if  this 
conflict  of  arms  is  to  be  deemed  war,  our  enemies 
must  have,  against  the  government,  all  the  immu- 
nities of  international  belligerents.  But  this  is  to 
overlook  the  double  character  which  these  enemies 
sustain.  They  are  at  the  same  time  belligerents  and 
traitors,  and  subject  to  the  liabilities  of  both ;  while 
the  United  States  sustain  the  double  character  of  a 
belligerent  and  sovereign,  and  have  the  rights  of 
both.  These  rights  coexist,  and  may  be  exercised 
at  pleasure.  Thus,  we  may  treat  the  crew  of  a 
rebel  privateer  merely  as  prisoners  of  war,  or  as 
pirates,  or  traitors ;  or,  we  may,  at  the  same  time, 
give  to  a  part  of  the  crew  the  one  character,  and  to 
the  residue  the  other.  And,  after  treating  them  as 
prisoners  of  war,  we  may  exercise  our  sovereign 
power,  and  deal  with  them  as  traitors.  The  ^tem- 
porary non-user  of  such  rights  is  not  a  renunciation 
of  them,  but  they  may  be  called  into  practical  ex- 
ercise at  pleasure.  In  modern  times,  if  a  rebellion 
has  assumed  such  dimensions  as  to  raise  armies  and 
involve  great  numbers,  it  has  not  been  usual  during 
the  contest,  to  exercise  toward  prisoners  the  sover- 
eign right  of  dealing  with  them  as  traitors.  They 
have  generally  been  treated  as  prisoners  of  war  until 
the  contest  is  over.     But  this  forbearance  does  not 


EIGHTS   AND    LIABILITIES    EESULTING    THEKEFEOM.  85 

preclude  tlieir  government  from  afterward  inflicting 
sucli  punisliment  as  justice  and  policy  may  require. 

"  Mr.  Wheatcto,  in  his  Elements  of  International 
Law,  p.  365,  so  strongly  maintains  belligerent 
rights  in  civil  war,  that  some  of  his  language  would 
imply  that  there  are  no  other  rights.  This,  how- 
ever, could  not  have  been  intended ;  for,  if  sover- 
eign rights  be  at  an  end,  the  war  is  merely  inter- 
national. Civil  war,  ex  vi  termini^  imports  that 
sovereign  rights  are  not  relinquished  but  insisted 
on.  The  war  is  waged  to  maintain  them.  Hose  vs. 
Himely^  4  Cranch,  272,  was  a  case  arising  out  of  the 
exercise  of  sovereign  rights  by  France,  in  her  civil 
war  with  St.  Domingo.  The  court  recognized  the 
coexistence  of  belligerent  and  sovereign  rights. 
Cherriot  vs.  Foussatt,  3  Binney,  252,  also  arose  out 
of  a  municipal  regulation  made  by  France,  in  the 
same  ci-vil  war,  and  the  court  remarked  that  France 
was  possessed  of  belligerent  rights  which  might  be 
exercised  against  neutral  nations.  Dohvie  vs.  Na- 
pie7%  3  Scott's  E.,  225,  arose  out  of  the  blockade  of 
the  coast  of  Portugal  by  the  Queen  of  that  country, 
and  the  condemnation  of  a  vessel  as  prize  for  the 
breach  of  it,  was  holden  to  be  valid.  See  also  the 
Santissima  Irinidad,  7  Wheat.,  306,  and  United 
States  vs.  Palmer^  3  Wheat.,  635. 

"  The  United  States  have,  during  the  present  war, 
exercised  both  belligerent  and  sovereign  rights. 

"Examples  of  the  former  are,  receidng  capitula- 
tions^ of  the  enemy  as  prisoners  of  war,  and  holding 
and  exchanging  them  as  such;  and  a  still  more 
prominent  instance  is  the  blockade,  which,  before 
the  assembling  of  Congress,  was  established  by  the 
military  authority  of  the  commander-in-chief. 


86  THE    CIVIL    WAR    1^   THE    UNITED    bTATES. 

"  I  am  satisfied  that  the  United  States,  as  a  na- 
tion, have  full  and  comj)lete  belligerent  rights, 
which  are  in  no  degree  impaired  by  the  fact  that 
their  enemies  owe  allegiance,  and  have  superadded 
the  guilt  of  treason  to  that  of  unjust  war. 

"  But  it  is  insisted  that  if  these  rights  exist,  still 
the  authority  to  exercise  them,  by  arresting  and 
condemning  enemy's  property,  must  emanate  from 
the  legislature,  and  that  there  has  been  no  legisla- 
tion authorizing  this  ca23ture. 

"Congress  has  established  permanent  prize  tribu- 
nals, and  created  an  army  and  navy.  The  Consti- 
tution declares  that  the  President  shall  be  the  com- 
mander-in-chief of  the  army  and  navy  of  the  United 
States.  He  is  thus  clothed  with  all  the  power  ap- 
pertaining to  that  high  office,  and  he  is  not  only 
authorized,  but  bound,  to  exert  it,  when  the  exigency 
for  which  it  was  given  shall  arise.  If  a  hostile 
power,  either  from  without  or  within  our  territory, 
shall  assail  and  capture  our  forts,  and  raise  armies 
to  overthrow  our  government,  and  invade  its  soil, 
and  menace  the  capital  of  the  nation,  and  shall 
issue  commissions  to  pu])lic  and  private  armed  ships 
to  depredate  on  our  commerce,  the  President  is 
bound  to  use  the  army  and  navy  to  carry  on  the 
war  effectively  against  such  an  enemy,  both  by  land 
and  l)y  sea.  And  he  may  do  so  in  the  manner,  and 
by  the  measures,  usual  in  modern  civilized  warfare ; 
one  of  the  most  familiar  of  which,  is  the  capturt;  of 
enemy's  property,  public  and  private,  on  the  ocean. 

"  In  war,  the  commander-in-chief  is  not  only  author- 

^  ized  to  make  captures  by  sea  and  conquests  by  land, 

l)ut  he  may  even  govern  the  conquered  territory 

until  Congress  shall  have  seen  fit  to  interpose  by 


EIGHTS    AND    LIABILITIES    RESULTING    THEREFKOM.  87 

leo-islatioD.  In  our  last  war,  California  having;  been 
subjugated,  the  commander-in-chief  im23osed  duties, 
established  custom-houses,  and  collected  revenues; 
and  this  was  sanctioned  by  the  Supreme  Court  as 
a  legitimate  exercise  of  military  power.  {^Oross  et 
al.  vs.  Harrison.,  16  Howard,  104.)  There  can  be 
no  doubt  of  the  rio-ht  of  the  President  to  make 
maritime  captures,  and  suljmit  them  to  judicial  in- 
vestigation. It  is  one  of  the  best  established,  and 
least  dangerous,  of  his  powers,  as  commander-in- 
chief.  Further  than  this,  Congress  have  legislated 
upon  the  subject,  although  it  was  not  necessary  for 
them  to  do  so. 

"  The  statute  of  1807,  ch.  39,  provides  that,  when- 
ever it  is  lawful  for  the  President  to  call  forth  the 
militia,  to  suppress  an  insuiTection,  he  may  employ 
the' land  and  naval  forces  of  the  United  States  for 
that  purpose. 

"  The  authority  to  use  the  army  and  navy  is  thus 
expressly  confirmed,  but  the  manner  in  which  they 
are  to  be  used  is  not  prescribed.  That  is  left  to 
the  discretion  of  the  President,  guided  by  the 
usages  and  principles  of  civilized  war,  and  these 
principles  and  usages  undoubtedly  authorize  the 
capture  of  enemy's  property  at  sea. 

"  What  is  enemy's  property,  is  a  judicial  question, 
to  be  decided  by  the  prize  court;  "and  unless  other- 
wise instructed  by  their  own  sovereign,  they  must 
be  guided  by  the  rules  and  principles  of  public 
law. 

'  ''  Property  may  be  condemned  as  hostile  without 
proof  of  the  personal  sentiments  of  the  owner  being 
disloyal. 

"  Acts  which  tend  to  subserve  the  interests  of 


88  THE    CIVIL    WAE   IN   THE    UNITED    STATES. 

the  enemy,  may  impress  a  hostile  character  upon 
property,  without  regard  to  the  political  views  or 
wishes  of  the  owner.  Residence  of  the  owner  in  the 
enemy's  country,  may  be  of  such  a  character  as  to 
stamp  the  property  conclusively  as  hostile.  How 
far  residence  may,  in  any  case,  be  open  to  explana- 
tion, «  r  the  presumj^tion  arising  therefrom  be  re- 
pelled, I  have  no  occasion  to  consider.  When  a 
hostile  character  is  imputed  to  property  because  of 
the  residence  of  the  owner,  the  court  may  be  com- 
pelled to  decide  whether  the  place  of  his  residence 
be  enemy's  country. 

"  What  shall  be  deemed  enemy's  country  is  some- 
times a  question  of  nwich  difficulty.  Some  nations 
or  tribes  can  hardly  be  said  to  have  any  country. 
Such  are  the  nomadic  Arabs,  and  such  were  the 
children  of  Israel  during  some  part,  at  least,'  of 
their  migration  from  Egypt  to  Palestine.  A  bel- 
ligerent nation  may  invade  a  neutral  province  and 
hold  the  control  of  it,  and  yet  the  possession  be 
such  as  not  necessarily  to  impress  upon  the  inhabi- 
tants a  hostile  character.  Thus,  in  the  case  of  TJie 
Gerasimo^  11  Moore,  P.  C,  101,  it  was  decided  that, 
although  Russia  had  taken  forcible  possession  of 
the  Danubian  Principalities,  and  for  a  time  lield 
dominion  over  them,  yet,  that  a  ship  of  a  resident 
of  Wallachia  was  not  liable  to  capture  by  a  British 
cruiser  as  enemy's  property ;  the  occupation  of  that 
province  Ijy  Russia,  being  not  only  forcible,  against 
the  will  of  the  inhabitants,  but  avowedly  temporary 
and  for  a  special  purpose.  If  Wallachia,  by  its  lo- 
cal government,  the  Hospodar  and  Divan,  had  vol- 
untarily joined  with  Russia,  and  made  common  cause 
in  the  war  against  England,  the  inhabitants  would, 


EIGHTS   AND    LIABILITIES   RESULTING   THEREFKOM.  89 

unquestionably,  have  been  enemies,  and  their  prop 
erty  on  the  ocean,  lawful  prize. 

"  In  cases  which  may  come  within  the  definition 
of  civil  war,  there  may  be  only  an  assemblage  of 
individuals,  in  military  array,  without  political  or- 
ganization or  territorial  limit ;  or,  armed  l^ands  may 
make  hostile  incursions  into  a  loyal  state,  or  hold 
divid'jd,  contested,  or  precarious  possession  of  por- 
tions of  it,  as  now  in  Missouri  and  Kentucky.  In 
such  cases,  local  residence  may  not  create  any  pre- 
sumptio;Q  of  hostility.  Far  otherwise  is  it  in  Vir- 
ginia. On  the  17th  day  of  April,  1861,  being  im- 
mediately after  the  rebel  confederates  had  attached 
and  captured  Fort  Sumter,  a  convention  of  dele- 
gates, by  solemn  ordinance,  undertook  to  place  all 
the  inhabitants  of  that  state  in  an  attitude  of  re- 
bellion, and  to  join  the  war,  which  had  been  previ- 
ously begun  against  the  United  States.  The  act  of 
rebellion  was  to  take  immediate  effect,  and  an  alli- 
ance makino-  common  cause  with  the  Confederate 
enemy  was  immediately  formed  and  hostilities  ac- 
tively waged  by  armies  raised  within,  and  invited 
from  without  the  state.  All  this  was,  indeed,  sub- 
ject to  be  disaffirmed  by  a  vote  of  the  whole  people 
of  the  state,  to  be  taken  on  the  23d  day  of  May ; 
but  no  part  of  it  has  been  disaffirmed.  On  the  con- 
trary, the  popular  vote  on  that  day,  apparently  by 
a  large  majority,  ratified  the  proceedings  of  the 
convention,  the  alliance,  and  the  war.  The  w^estern 
counties  in  the  state  nobly  vindicated  their  honor 
atid  their  fidelity,  by  refusing  submission  to  rebel 
mandates,  and  adhering  to  the  Union.  ^  They  did 
not,  indeed,  change  their  domicile,  but  the}^  re- 
moved the  power  of  rebel  Virginia  from  the  place 


90  THE    CIVIL    WAE    IX    THE   UNITED    STATES. 

of  their  domicile.  The  Virginia  reljellion  was  not 
the  act  of  individuals  asserting  that  moral  right  of 
revolution  which  belongs  to  all  subjects,  but  it  was 
the  assertion  of  a  pretended  state  right.  It  was 
founded  solely  on  the  deadly  doctrine  of  secession, 
which  claims  that  a  state,  as  an  organized  political 
body,  may  sever  itself  from  the  Union.  In  attempt- 
ing this,  and  carrying  on  the  war,  it  acted  by  ma- 
jorities claiming  implicit  obedience  from  the  mi- 
nority. The  exterior  l^oundaries  of  the  state,  and 
its  internal  division  by  counties,  have  been  clearly 
defined,  and  the  city  of  Richmond,  where  these 
claimants  reside,  is  within  the  territory  over  which, 
by  known  limits,  this  political  body  has,  for  nine 
months  past,  held  absolute  dominion. 

"  Such  residence  subjects  both  property  and  person 
to  the  absolute  control  of  the  enemy,  and  augments 
his  resources  and  his  streno;th.  And  I  see  no  sufii- 
cient  reason  why  it  is  not  to  be  deemed  a  continued 
residence  in  an  enemy's  country,  which  subjects 
property  captured  on  the  ocean  to  condemnation  as 
lawful  prize.  In  this  case,  it  does  not  appear  that 
the  claimants  ever  had  a  domicile  in  any  other  place 
than  Eichmond ;  nor  is  there  any  evidence  go^ng  to 
explain  their  continuance  there,  or  to  repel  the  pre- 
sumption of  hostility  arising  therefrom. 

"  It  is  not  necessary  therefore,  to  decide  whether 
such  evidence  could  be  admitted,  or  what  would  be 
its  effect.  In  questions  so  novel,  I  do  not  think  fit 
to  go  farther  than  the  case  before  me  requires. 

"  But  it  is  objected  that  the  question,  what  persons 
or  country  are  to  be  deemed  hostile,  is  not  a  judi- 
cial one;  or  rather,  that  the  courts  cannot  con- 
sider any  person  or  country  to  be  hostile,  unless  the 


EIGHTS   AND    LIABILITIES    EESULTING   THEEEFEOM.  91 

legislature  has  previously  designated  tliem  as  such. 
This  is  directly  met  by  the  case  of  The  Gerasimo, 
11  Moore,  P.  C,  101,  above  cited,  in  which  the  sole 
question  was,  whether  the  province  of  Wallachia 
was  enemy's  countiy  so  as  to  subject  the  property 
of  a  resident  therein,  to  capture  as  ]3rize.  This 
question  the  High  Court  of  Admiralty  decided  in 
the  affirmative,  and  the  Privy  Council  in  the  nega- 
tive. Both  decisions  were  founded  exclusively 
upon  the  character  of  the  Russian  occupation,  as 
exhibited  by  the  evidence,  the  court  having  no  aid 
or  instruction,  by  any  act  either  of  the  Queen  or  the 
Parliament.  The  cause  was  most  elaborately  dis- 
cussed, both  by  tlie  bar  and  the  bench,  and  yet  not 
a  doubt  was  suggested  of  the  question  being  strictly 
judicial. 

"  This  objection,  that  it  does  not  belong  to  the 
court  to  decide  who  shall  be  deemed  enemies,  or 
rather,  that  the  court  can  decide  only  one  way,  and 
that  again.^t  the  ca})tors,  unless  Congress  has  pre. 
viously  declared  who  shall  be  considered  enemies, 
really  carries  us  back  to  the  questions  whether  there 
can  be  war  without  a  declaration  by  Congress,  and, 
whether,  in  civil  war,  the  parent  country  has  full 
belligerent  i-ights.  Those  questions  have  already 
been  considered  ;  and  it  is  believed  that  such  rights 
exist,  and,  among  them,  undoubtedly  is  that  of 
making  maritime  captures  of  enemy's  property. 
And  when  property  is  bix^ught  in  for  adjudication, 
th,e  court  must  decide  whether  it  be  hostile  or  not ; 
and  in  doing  so,  it  must,  in  the  absence  of  legisla- 
tive instruction,  be  guided  by  general  principles 
and  usage,  under  which,  one  criterion  of  enemy's 
property  is  the  residence  of  the  owner.     This  is  a 


92  THE   CIVIL    WAE   ES"   THE   FISTFTED    STATES. 

known  and  well-establislied  rule  of  decision,  whicli 
the  court  cannot  disregard.  It  is  not  necessary, 
however,  to  determine  how  the  court  would  deal 
with  these  questions,  in  the  absence  of  any  action, 
by  other  departments  of  the  government,  because 
there  has  been  such  action, 

"In  addition  to  other  important  acts,  the  President 
by  proclamation  of  the  SYth  of  April,  established  a 
blockade  of  the  ports  of  Virginia.  This  was  the 
exercise  of  a  great  belligerent  right,  and  could  have 
been  done  under  no  other.  He  could  not  prohibit 
or  restrict  the  commerce  of  any  state  by  a  mere 
municipal  regulation.  The  blockade  was  avowedly 
established  as  a  bellig-erent  act  under  the  law  of 
nations ;  and  it  was  accordingly  announced  that  it 
would  be  rendered  effective  by  an  adequate  naval 
force ;  and  in  all  proceedings  in  relation  to  it  by 
our  own  country  and  other  nations,  it  has  been  re- 
garded as  a  belligerent  act.  Under  it,  there  have 
been  divers  captures  by  our  navy,  and*  condemna- 
tions by  our  courts.  Now  such  a  blockade  could 
not  be  valid  unless  it  be  of  enemy's  country. 

"  Some  have  thought  that  it  was  to  be  deemed  en- 
'  emy's  country,  because  of  the  proclamation  of  the 

President.  It  seems  to  me  rather  that  the  proclama- 
tion and  the  blockade  are  to  be  uj^held  as  legal  and 
valid,  because  the  territory  is  that  of  an  enemy. 
But  whichever  view  is  adopted,  the  result  is  the 
same,  namely,  that  the  court  must  regard  the  coun- 
try as  hostile. 

"  Richmond,  where  these  claimants  reside,  is  one 
of  the  places  that  was  thus  blockaded.  This  is  not 
all.  The  proclamation  of  a  blockade  of  Virginia, 
as  hostile  territory,  and  the  orders  of  the  President 


RIGHTS    AND   LIABILITIES   EESULTLN^G    THEREFKOM.  93 

to  the  navy,  under  wliicli  captures  like  tlie  present 
have  been  made,  have  been  expressly  confirmed  by 
Congress. 

"  The  statute  of  6th  August  last,  ch.  63,  declares 
that  such  acts  and  orders  shall  have  the  same  effi- 
cacy as  if  they  had  been  previously  authorized  by 
legislative  enactments. 

"  Without  o'oinD-  into  a  discussion  of  the  effect  of 
that  confirmation,  it  is  evident  that  it  must  have 
the  force  of  an  instruction  to  prize  tribunals,  to  re- 
gard those  proceedings  of  the  President  as  legal  and 
valid. 

"  It  has  been  urged  that  in  a  civil  war,  it  may 
sometimes  be  very  impolitic  to  confiscate  the  prop- 
erty of  persons  resident  in  the  rebel  country ;  and 
that  the  expediency  of  doing  so  is  a  political  ques- 
tion to  be  determined  by  the  legislature. 

"  We  are  now  dealing  only  with  maritime  cap- 
tures. It  is  true  that  policy  may  sometimes  require 
that  the  property  of  such  residents  should  be  ex- 
empted from  arrest ;  and  it  is  c[uite  as  certain  that 
sometimes  it  ought  not  to  be  exempted.  There 
should  therefore  be  somewhere  lodged  a  discretion- 
ary power,  to  capture  this  property  or  not,  as  vary- 
ing circumstances  and  exigencies  may  require. 

"  This  power  is  now  vested  in  the  President.  He 
controls  the  navy,  and  directs  what  captures  shall 
be  made.  He  may  instruct  inferior  officers  that 
particular  vessels,  or  those  belonging  to  certain  per- 
sons, or  engaged  in  a  particular  trade,  are  not  to  be 
arrested. 

"  What  captures  shall  be  made,  like  other  ques- 
tions of  war  policy,  may  safely  be  left  to  the  dis- 
cretion of  the  commander-in-chief. 


94  THE   CIVIL    WAR   IjST   THE   UNITED    STATES. 

"The  statute  of  1861,  ch.  28, has  been  referred  to, 
as  assuming  that  there  are  loyal  citizens  in  the 
rebel  states  who  are  to  be  aided  and  protected,  and 
it  is  urged  that  their  property  should  not  be  sub- 
ject to  confiscation.  That  act  places  two  millions 
of  dollars  in  the  hands  of  the  President,  to  be  used 
at  his  discretion  in  arming,  organizing,  and  sustain- 
ing loyal  citizens  in  rebel  districts.  This  act  un- 
doubtedly contemplates  that  there  may  be  such 
loyal  citizens,  and  that  it  may  be  expedient  so  to 
aid  and  strengthen  them :  and  it  makes  an  appro- 
priation for  that  purpose.  But  it  is  wisely  left  to 
the  unrestricted  judgment  of  the  President  to  deter- 
mine who  are  such  loyal  citizens,  if  any,  and  to 
what  extent  they  shall  be  treated  as  such. 

"  It  adds  to  the  means  of  the  President,  but  in  no 
degree  detracts  from  his  previous  authority,  to  treat 
persons  or  property  as  he  shall  deem  best. 

"  It  has  been  contended  that  the  proviso  in  the 
24th  section  of  the  crimes  act  of  1*790,  ch.  9, 
should  prevent  condemnation  of  this  cargo  as  prize. 
That  act  describes  certain  offences,  and  prescribes 
their  punishment ;  and  among  them  is  the  crime  of 
treason. 

"The  proviso  declares,  that  no  convictiori  shall 
work  corruption  of  blood  or  forfeiture  of  estate. 
This  shows  that  the  lawgivers  thought  that  death 
was  a  sufficient  penalty,  without  confiscation  follow- 
ing as  a  legal  consequence  of  conviction. 

"  There  is  an  analogous  provision  in  the  Constitu- 
tion (art.  3,  §  3),  and,  as  it  has  embarrassed  some 
minds,  it  deserves  attention. 

"  In  the  first  place,  the  objection  assumes,  that 
there  can  be  no  condemnation  unless  the  claimants 


EIGHTS    AND    LIABILITIES    EESULTING   THEEEFROM.  95 

are  traitors.  This  is  an  error.  As  already  stated, 
property  may  be  treated  as  hostile,  altliougli  the 
owner  has  not  been  guilty  of  treason.  He  may  be 
an  alien,  owing  no  allegiance;  or  a  citizen,  whose 
opinions  or  wishes  are  not  proved  to  be  hostile, 
and  yet,  he  may  be  so  situated,  and  his  property  be 
so  used,  as  to  subject  it  to  capture  as  prize. 

"A  striking  case  is  to  be  found  in  The  Yenus^  8 
Cranch,  253.  In  that  case  a  citizen  of  the  United 
States,  residing  at  Liverpool,  shipped  property  for 
New  York,  on  the  4th  of  July,  1812,  having  no 
knowledge  of  the  war,  which  had  been  previously 
declared  by  the  United  States.  This  property  was 
captured  by  an  American  privateer,  and  held  by 
the  Supreme  Court  to  be  lawful  prize.  The  court, 
in  delivering  their  opinion,  say,  that  although  the 
claimant,  being  a  citizen  of  the  United  States,  '  can- 
not be  considered  an  enemy  in  the  strict  sense  of 
the  w^ord,  yet  he  is  deemed  such,  with  reference  to 
the  seizure  of  so  much  of  his  property,  concerned  in 
the  trade  of  the  enemy,  as  is  connected  with  his 
residence.  It  is  found  adhering  to  the  enemy.  He 
is  himself  adhering  to  the  enemy,  although  not 
criminally  so.'  (See  also  the  cases  collected  by 
Sir  William  Scott,  in  The  Hoop,  1  Kob.,  196.) 

"  In  the  case  now  before  me,  it  is  not  contended  or 
offered  in  proof  by  either  party,  that  these  claim- 
ants have  been  guilty  of  the  crime  of  treason  ;  and 
surely  the  claimants  cannot  set  it  up,  in  argument, 
as  a  defence.  In  the  second  place,  the  owner  may, 
by  certain  acts,  have  subjected  his  property  to  be 
treated  as  enemy's,  and  by  other  distinct  acts,  com- 
mitted the  crime  of  treason ;  and  confiscation  may 
be  inflicted  for  the  former,  and  the'penalty  of  death 


.96  THE    CIVIL    WAR    IIS"   THE    U2fITED    STATES. 

for  the  latter.  Just  as  tlie  same  person  may  be 
guilty  of  larceny,  and  subsequently  of  murder,  and 
be  fined  for  tlie  first,  and  afterward  convicted  of  tlie 
capital  offence. 

"  Third,  suppose  there  should  be  but  one  act,  which 
is  such  a  use  of  property  as  "subjects  it  to  confisca- 
tion, and,  at  the  same  time,  constitutes  an  overt  act 
of  treason ;  and  suppose  further,  that  the  govern- 
ment cannot  proceed  for  both  penalties,  yet  they 
may  elect.  They  are  not  bound  to  prosecute  for 
the  crime ;  and  if  they  enforce  the  forfeiture,  the 
most  that  can  be  contended  is,  that  they  are  thereby 
precluded  from  subsequently  having  a  conviction 
for  the  treason. 

"  The  acts  passed  by  Congress  last  summer  have 
.  been  referred  to,  as  expressing  the  views  of  the 
legislature  upon  the  subject  of  confiscation  in  the 
present  war.  As  they  do  not  reach  cases  like  the 
present,  it  is  contended  that  it  was  the-  intention  of 
the  legislature  that  such  j)roperty  should  not  be 
condemned.  It  is  obvious  that,  in  their  general 
purpose  and  effect,  they  were  intended  to  make  the 
prosecution  of  the  war  more  efficient,  to  give  addi- 
tional means  and  power  to  the  President,  but  in  no 
degree  to  curtail  the  authority  which  he  j)re\iously 
possessed.  They  embrace  some  cases  in  which  con- 
fiscation Avould  not  follow  from  the  general  law, 
and  render  others  more  definite  and  certain,  and 
provide  new  modes  of  procedure.  The  belligerent 
fight  of  capture  at  sea  previously  existed,  and  Con- 
gress has  left  it  unimpaired. 

"  Further  still.  This  right  of  maritime  capture 
was  not  only  well  known,  but  had  actually  and 
notoriously  been  exercised. 


EIGHTS    AND    LIABILITIES    EESULTING    THEllEFllOM.  9*7 

"  The  last  session  of  Congress  closed  on  tlie  sixtli 
day  of  August.  Prior  to  that  time  divers  captures 
had  been  made  of  vessels  and  cargoes  belonging  to 
inhabitants  of  insurgent  districts.  In  particular, 
The  General  ParJcliill  was  captured  on  the  twelfth 
day  of  May,  and  sent  to  "Philadelphia,  and  there 
condemned  as  enemy's  property,  at  the  June  term 
of  the  District  Court.  The  Pioneer^  Qrenslmv^ 
North  Carolina^  and  Hcdlie  Jachson,  were  sent  into 
the  port  of  New  York  in  the  course  of  May  and 
June,  and  the  "vessels  or  their  cargoes  have  since 
been  condemned  as  enemy's  property.  In  this  very 
case  of  The  Amy  Warwich,  the  capture  was  made 
on  the  tenth  of  July,  and  the  libel  was  filed  on  the 
eighteenth  of  that  month.  All  these  caj)tures  were 
made  by  ships  of  war,  and  of  course  under  orders 
emanating  from  the  President.  Yet,  so  far  from 
discountenancing  these  proceedings.  Congress,  as  we 
have  already  seen,  did,  by  the  act  of  the  sixth  of 
August  (chap.  63,  sec.  3),  expressly  confirm  all 
orders,  respecting  the  army  and  navy,  which  had 
been  made  by  the  President  since  the  fourth  of 
March  last. 

"  The  counsel  for  the  claimant  has  relied  upon  a 
recent  charge,  by  Mr.  Justice  Nelson,  to  the  Grand 
Jury  in  the  Second  Circuit.  That  learned  judge 
did  not  enter  into  any  discussion  of  prize  law.  The 
occasion  did  not  call  for  it.  He  expressed  the 
opinion,  if  correctly  reported  in  the  newspapers, 
that  loyal  citizens  of  rebel  districts  were  not  to  be 
treated  as  enemies,  nor  their  property  confiscated. 
But  he  did  not  undertake  to  say  who  were  to  be 
deemed  loyal  citizens,  what  was  to  be  the  evidence 
of  their  fidelity,  or   how  the  presumptions  arising 


98  THE    CIVIL    WAR    IIS^    THE    UNITED    STATES. 

• 

from  continued  residence  in  tlie  enemy's  country 
are  to  be  overcome. 

"  The  counsel  for  the  captors  has  relied  upon  a 
remark  made  by  Judge  Dunlo]),  in  the  case  of  The 
Tropic  Wind,  and  upon  the  learned  decisions  of 
Judge  Cadwallader,  in  "the  case  of  The  General 
Tarhhill,  and  of  Judge  Betts,  in  the  cases  of  The 
Orensliavj,  JVotih  Carolina,  Pioneer,  and  Ilallie 
Jackson.  These  cases  are  directly  in  point,  and  I 
might  w^ell  have  rested  my  decision  solely  upon  the 
authority  of  those  able  and  distinguished  judges. 
But  as  it  has  been  contended  that  those  decisions  are 
not  sustained  by  the  authorities  which  were  cited 
in  their  support,  I  have  yielded  to  the  earnest  invita- 
tion of  the  eminent  counsel  in  this  cause,  to  investi- 
gate the  principles  and  authorities  w^hich  it  involves. 

"  Claim  rejected  and  the  property  condemned." 

At  a  subsequent  period,  and  in  the  same  case, 
"  071  the  claim  of  Dunlop,  Moncitre  c&  Co.,''''  after  the 
doctrines  announced  in  the  foregoing  opinions  of 
the  several  District  Courts,  had  undergone  elabo- 
rate discussion  and  criticism,  as  well  in  the  national 
legislature,  as  in  coordinate  and  appellate  tribunals, 
the  learned  judge  takes  occasion  to  review  his 
former  opinion  at  great  length,  and  to  announce  in 
the  following  instructive  disquisition,  that  he  has 
"  seen  no  reason  to  change  that  opinion :" 

"  The  decrees  of  the  District  Courts  condemnino; 
property  as  hostile,  have  been  objected  to,  on  the 
ground  that  they  pronounce  the  owners  to  be  ene- 
mies, when  in  fact  they  may  be  personally  loyal. 
But  it  is  a  mistake  to  suppose  that  those  judgments 
go  beyond   the  foct  of  permanent  residence,  and 


EIGHTS    Al^D    LIABILITIES    IlESULTI]SrG    THEEEFEOM.  99 

assert  personal  guilt  in  the  o^\Tier.  This  mistake 
has  probably  arisen  from  misapprehending  the  im- 
port of  certain  language,  of  frequent  recurrence  in. 
prize  law,  such  as  that  property  is  to  be  condemned 
as  enemy's,  or  is  to  be  deemed  enemy's,  or  that  it 
is  impressed  with  a  hostile  character.  These  are 
equivalent  expressions.  They  do  not  necessarily 
import  that  the  owner  is  personally  hostile,  but 
only  that  his  property  has  been  placed  in  such  re- 
lation to  the  enemy  that  a  court  of  prize  is  to  deal 
with  it  as  if  it  belonged  to  the  enemy.  It  is  quite 
a  mistake  to  suppose  that  j)roperty  is  never  to  be 
condemned  except  for  personal  delinquency  of  the 
owfler.  Even  under  the  municipal  law,  ships  and 
cargoes  are  liable  to  condemnation  for  the  use  that 
has  been  made  of  them,  where  there  has  been  no 
guilty  knowledge  or  intent  on  the  part  of  the 
owner ;  and  in  prize  law,  condemnation  is  not  the 
infliction  of  personal  punishment  on  proof  of  indi- 
vidual guilt,  but  it  is  a  matter  of  belligerent  policy, 
to  destroy  the  commerce  of  the  enemy  and  dimin- 
ish his  resources.  This  is  emphatically  set  forth  in 
the  case  of  The  Venus  (8  Cranch),  where  property 
of  a  citizen  of  the  United  States  was  condemned  by 
reason  of  his  residence,  although,  as  the  Supreme 
Court  expressly  declare,  there  was  no  personal 
guilt.  The  same  doctrine  is  found  in  many  other 
cases.  The  objection,  when  scrutinized,  involves  a 
denial  of  the  power  of  the  court  to  make  any  cour 
demnation  as  prize,  under  the  principles  and  ac- 
co'i'ding  to  the  rules  of  the  general  law,  and  the 
practice  of  nations ;  and  this  is  to  deny  to  the 
United  States  the  exercise  of  belli o-erent  rights. 
For  there  is  no  right  of  war  more  clearly  established 


100  THE    CIVIL    WAE   IN   THE    UNITED    STATES. 

or  more  universally  exercised,  than  tliat  of  inari- 
time  captures  ;  and  no  reason  can  be  assigned  why 
the  United  States  should  be  deprived  of  the  power 
of  exercising  this  important  right  in  the  present 
war.  How  far  the  peculiar  circumstances  of  this, 
or  any  other  conflict,  should  induce  forbearance, 
like  many  other  questions  of  policy,  in  the  conduct 
of  the  war,  is  to  be  determined  by  the  combiander- 
in-chief  or  the  legislature.  It  is  for  them,  or  one 
of  them,  to  say  what  captures  should  be  made,  and 
what  cases  or  classes  of  cases  shall  be  sent  in,  and 
condemnation  sought  by  prosecution.  In  adjudi- 
cating such  cases,  the  courts  must  be  guided  and 
governed  by  established  princi2:>les  and  rules  of  de- 
cision. This  is  well  known  to  the  other  depart- 
ments of  the  government,  and  when  they  send  a 
captured  vessel  to  the  court,  to  be  there  proceeded 
against  as  a  prize,  they  necessarily  intend,  in  the 
absence  of  other  instructions,  that  the  court  shall 
proceed  and  decide  according  to  the  established 
rules  and  principles  of  prize  law.  There  is  no  other 
guide.  That  the  great  conflict  in  which  we  are 
now  engaged  is  war,  in  the  legal  sense  of  the  term, 
is  sliown  by  the  express  language  of  the  Constitu- 
tion in  defining  the  crime  of  treason ;  that  the 
United  States,  in  this  war,  have,  on  the  ocean,  all 
the  rights  of  belligerents,  has  never  been  distinctly 
controverted.  To  deny  it,  is  to  break  up  the  block- 
ade, and  every  condemnation  under  it. 

"  Those  who  have  thought  that  the  courts  cannot 
enforce  the  belligerent  rights  of  the  nation  without 
the  action  of  Congress,  should,  I  think,  be  satisfied 
that  there  has  been  sufficient  legislation.  In  addi- 
tion to  the  statutes  passed  during  the  last  summer, 


EIGHTS   AND   LIABILITIES    RESULTING   THEEEFEOM,  101 

and  particularly  the  ratifying  act  of  tlie  fifth  of 
August,  whicli  was  adverted  to  in  my  former  opin- 
ion, Congress,  on  the  25th  day  of  March  last,  passed 
an  act  to  regulate  the  mode  of  procedure  in  prize 
cases.  The  first  section  relates  to  the  custody  and 
preservation  of  captured  property  and  the  taking 
of  evidence.  The  second  and  third  sections  relate 
to  expenses  and  the  compensation  of  officers.  The 
fourth  section  relates  to  the  disposition  of  prize 
property  after  final  condemnation.  This  statute 
afi:ects  only  the  mode  of  procedure.  It  gives  no 
direction  as  to  the  principles  or  doctrines  by  which 
the  court  is  to  be  guided  in  its  adjudications.  It 
does  not  touch  the  rule  of  decision.  The  title  of 
this  statute  declares  it  to  be  an  '  Act  for  the  better 
administration  of  the  la^v  of  prize,'  The  court  then 
is  to  administer  the  law  of  prize,  and  that  must  be 
the  general  law  as  known  to  the  prize  tribunals  of 
the  civilized  world,  with  such  modifications  as  may 
be  made  by  our  own  legislature.  But  to  what  cases 
is  this  general  law  of  prize  to  be  applied  ?  This 
question  is  answered  by  the  fifth  section  of  the  stat- 
ute, which  declares  that  its  provisions  '  shall  apj^ly 
as  well  to  cases  now  pending,  as  to  all  future  cases 
of  maritime  captures.'  This  court  is  thus  expressly 
directed  to  administer  the  prize  law  in  cases  now 
pending,  or  hereafter  to  arise  in  this  civil  war,  as 
well  as  in  cases  of  maritime  captures  in  future  in- 
ternational wars.  No  distinction  is  indicated  be- 
tween these  two  classes  of  captures,  or  in  the  rules 
of  law  which  are  to  be  applied  to  them.  Further 
still :  the  legislature  expressly  recognizes  the  pen- 
dency of  prize  cases.  In  many  of  those  cases,  the 
only  question  was,  whether  property  should  be  con- 


102  THE    CIVIL    WAE   IN   THE    UNITED    STATES. 

demned,  by  reason  of  tlie  residence  of  the  owner  in 
the  enemy's  country.  This  question  lias  Ijeen  decid- 
ed by  the  District  Court  of  three  judicial  districts, 
all  concurrino-  in  decrees  of  condemnation.  This 
was  well  known,  and  yet  Congress,  in  passing  an 
act  for  the  better  administration  of  the  prize  law,  in 
cases  then  pending,  or  hereafter  to  arise,  does  not 
prescribe  any  rules  of  decision,  or  in  any  way  dis- 
countenance those  which  had  been  adopted  by  the 
cotirt^ ;  this  may  be  deemed  an  acquiescence  in,  or 
a  tacit  approbation  of  those  rules. 

"  An  objection  to  the  prize  decisions  of  the  Dis- 
trict Courts,  has  arisen  from  an  apprehension  of 
radical  consequences.  It  has  been  supposed  that  if 
the  government  have  the  rights  of  a  1)elligerent, 
then,  after  the  rebellion  is  suppressed,  it  will  have 
the  rights  of  conquest ;  that  a  state  and  its  inhabit- 
ants may  be  permanently  divested  of  all  political 
privileges,  and  treated  as  foreign  territory  acquired 
by  arms.  This  is  an  error ;  a  grave  and  dangerous 
error.  The'  rights  of  war  exist  only  while  the  war 
continues.  Thus,  if  ]^ace  be  concluded,  a  capture 
made  immediately  afterward  on  the  ocean,  even 
where  the  peace  could  not  have  been  known,  is  un- 
authorized, and  property  so  taken  is  not  prize  of 
war,  and  must  be  restored.  (Wheat.  Elements  of 
International  Law,  619.)  Belligerent  rights  cannot 
be  exercised  when  there  are  no  belligerents.  Titles 
to  property  or  to  political  jurisdiction,  acquired  dur- 
ing the  war,  by  the  exercise  of  belligerent  rights, 
may  indeed  survive  the  war.  The  holder  of  such 
title  may  permanently  exercise,  during  peace,  all  the 
rights  whicli  appertain  to  his  title ;  but  they  must 
be  rights  only  of  proprietorship  or   sovereignty; 


RIGHTS    AND    LIABILITIES    RESULTING   THEREFROM.  103 

they  cannot  he  belligerents.  Conquest  of  a  foreign 
country,  gives  absolute  and  unlimited  sovereign 
rights.  But  no  nation  ever  makes  such  a  conquest 
of  its  own  territory.  If  a  hostile  power,  either  from 
without  or  within  a  nation,  takes  possession  and 
holds  absolute  dominion  over  any  portion  of  its 
territory,  and  the  nation,  by  force  of  arms,  expels  or 
overthrows  the  enemy,  and  suppresses  hostilities,  it 
acquires  no  new  title,  but  merely  regains'  the  posses- 
sion of  which  it  had  been  temporarily  deprived. 
The  nation  acquires  no  new  sovereignty,  but  me*ely 
maintains  its  previous  rights.  (Wheat.  Elements 
of  International  Law,  616.)  During  the  war  of 
1812,  the  British  took  possession  of  Castine,  and 
held  exclusive  and  unlimited  control  over  it,  as  con- 
quered territory.  So  complete  was  the  alienation, 
that  the  Supreme  Court  held  that  goods  imported 
into  it  were  not  brought  into  the  United  States,  so 
as  to  be  subject  to  import  duties.  (  United  States  vs. 
Rice^  4  Wheat.,  246.)  Castine  was  restored  to  us 
under  the  treaty  of  peace,  but  it  was  never  supposed 
that  the  United  States  acquired  a  new  title  by  the 
treaty,  and  could  thenceforth  govern  it  as  merely 
ceded  territory.  And  if,  before  the  end  of  the  war, 
the  United  States  had,  by  force  of  arms,  driven  the 
British  from  Castine,  and  regained  our  rightful 
possession,  none  would  have  imagined  that  we  could 
thenceforth  hold  and  govern  it  as  conquered  terri- 
tory, depriving  the  inhabitants  cf  all  preexisting 
political  rights.  And  when,  in  this  civil  war,  the 
United  States  shall  have  succeeded  in  putting  down 
this  rebellion,  and  restoring  peace  in  any  state,  it 
will  only  have  vindicated  its  original  authority,  and 
restored  itself  to  a  condition  to  exercise  its  previous 


104  THE   CIVIL    WAR    IN    THE   UNITED    STATES. 

sovereio'ii  rio-lits  under  the  Constitution.  In  a  civil 
war,  the  military  power  is  called  in  only  to  main- 
tain the  government  in  the  exercise  of  its  legitimate 
civil  authority.  No  success  can  extend  the  powers 
of  any  department  beyond  the  limits  prescribed  by 
the  organic  law.  That  would  be  not  to  maintain 
the  Constitution,  but  to  subvert  it.  Any  act  of 
Congress  which  would  annul  the  rights  of  any  state 
under  the  Constitution,  and  permaTiently  subject 
the  inliabitauts  to  arbitrary  power,  would  be  as 
utterly  unconstitutional  and  void  as  the  secession 
ordinances  with  which  this  atrocious  rebellion  com- 
menced. The  fact  that  tlie  inhabitants  of  a  state 
have  passed  such  ordinances  can  make  no  difference. 
They  are  legal  nullities  ;  and  it  is  because  they  are 
so,  that  war  is  waged  to  maintain  the  government. 
The  war  is  justified  only  on  the  ground  of  their 
total  invalidity.  It  is  hardly  necessary  to  remark, 
that  I  do  not  mean  that  the  restoration  of  peace 
will  preclude  the  government  from  enforcing  any 
municipal  law,  or  from  punishing  any  offence  against 
previous  standing  laws. 

"  Another  objection  to  those  decisions  of  the  Dis- 
trict Courts  is  founded  upon  the  apprehension  that 
they  may  lead  to,  or  countenance,  cruel  and  ii\ipoli- 
tic  confiscations  of  private  property  found  on  land. 
This  apprehension  is  unfounded.  No  such  conse- 
quence can  legitimately  follow.  Those  decisions 
undoubtedly  assert  that  the  United  States  have  the 
rights  of  a  belligerent.  But  the  extent  of  those 
rights  on  land,  or  the  manner  in  which  they  are  to 
be  exercised,  was  not  discussed.  They  were  not 
even  adverted  to,  except  to  say  that  enemy's  prop- 
erty found  by  a  belligerent  on  land,  within  his  own 


EIGHTS    AND    LIABILITIES    RESULTING    THEKEEKOM.  105 

country,  on  the  breaking  out  of  a  war,  will  not  be 
condemned  by  tlie  courts,  although  it  would  be,  if 
found  at  sea.  This  distinction,  so  far  as  it  goes, 
tends  to  show  that  the  doctrine  of  maritime  cap- 
tures is  not  to  be  applied  to  seizures  on  land.  But 
the  danger  upon  which  this  objection  is  founded 
does  not  arise  from  the  administration  of  the  piize 
laws  by  the  courts,  or  the  exercise  of  belligerent 
rights  by  military  commanders  upon  military  exi- 
gencies. The  objection  really  arises  from  fear  of 
the  legislation  of  Congress.  It  is  apprehended  that 
they  may  pass  sweeping  or  general  acts  of  confisca- 
tion, to  take  practical  effect  only  after  the  rebellion 
shall  have  been  supj^ressed;  that  whole  estates 
real  and  personal,  which  have  not  been  siezed  dur- 
ing the  war,  may  be  taken  and  confiscated,  upon 
coming  within  reach  of  the  government,  after  hos- 
tilities shall  have  ceased.  This,  as  we  have  seen, 
would  not  be  the  exercise  of  belligerent  rights,  the 
war  being  at  an  end.  Belligerent  confiscations  take 
efiect  only  upon  property  of  which  possession  is 
taken  during  the  war.  As  against  property  which 
continues  under  the  control  of  the  enemy,  they  are 
wholly  inoperative.  If  possession  be  acquired  by 
or  after  the  peace,  then  previous  legislation  may 
take  effect,  but  it  will  be  by  the  right  of  sovereignty, 
not  as  an  act  of  war.  Under  despotic  governments, 
the  power  of  municipal  confiscation  may  be  un- 
limited, but  under  our  government,  the  right  of 
sovereignty  over  any  portion  of  a  state,  is  given 
and  limited  by  the  Constitution,  and  will  be  the 
same  after  the  war  as  it  was  before.  When  the 
United  States  take  possession  of  any  rebel  district, 
they  acquii-e  no  new  title,  but  merely  vindicate  that 


106  THE    CrVIL    WAE   IN   THE   UNITED    STATES. 

wliicli  previously  existed,  and  are  to  do  only  what 
is  necessary  for  tliat  purpose.  Confiscations  of 
property,  not  for  any  use  that  has  been  made  of  it, 
which  go  not  against  an  offending  thing,  but  are  in- 
flicted for  the  personal  delinquency  of  the  owner, 
are  punitive ;  and  punishment  should  be  inflicted 
onl}'^  upon  due  conviction  of  personal  guilt.  What 
oftences  shall  be  created,  and  what  penalties  afiixed, 
must  be  left  to  the  justice  and  wisdom  of  Congress, 
within  the  limits  prescribed  by  the  Constitution. 
Such  penal  enactments  have  no  connection  what- 
ever with  the  decisions  of  j^rize  courts  enforcing 
belligerent  rights  upon  property  captured  at  sea 
during  the  war." 

"  I  have  thus  noticed  the  objections  which  have 
been  made  to  the  former  opinion  of  the  court  so  far 
as  they  have  come  to  my  knowledge.  They  do  not 
seem  to  be  well  founded." 

« 

The  claimants,  in  several  of  the  cases  of  laro^est 

pecuniary  importance,  and  involving  the  great  fun- 
damental questions  discussed  and  determined  in  the 
foregoing  adjudications,  have  appealed  from  the  de- 
crees of  condemnation. 

These  appeals,  or  some  of  them,  having  been  heard 
in  the  Circuit  Court  of  the  United  States  for  the 
circuit  in  which  the  district  of  adjudication  is  in- 
cluded, and  the  decrees  having  been  affirmed  therein 
pro  forma,  or  upon  deliberation,  the  cases  are  now 
pending  upon  further  appeal,  in  the  Supreme  Court 
of  the  United  States. 

Their  early  discussion,  upon  the  final  appeals,  is 
confidently  anticipated;  and  the  judicial  determina- 
tion of  these  momentous  questions,  by  this  august 


EIGHTS    AND    INABILITIES    RESULTING   THEREFEOM.  lOT 

trilnmal  of  the  last  resort,  will  be  looked  for  by  tlie 
profession  and  tlie  community  witli  an  interest  more 
deep  and  absorbing  tlian  lias  attached  to  any  ques- 
tions submitted  to  the  arbitrament  of  the  judicial 
power  since  the  formation  of  the  Constitution. 


108  ALIEN  ENEivrr. 


CHAPTER  III. 

Of   the  Rights   of  Belligerents  to  Inteefere 

WITH  THE  CoMilERCE,  AND  TO  CaPTUEJJ  AND  CON- 
FISCATE THE  Property  of  other  than  Adverse 
Belligerents — and  herein  what  Constitutes 
Hostility  of  Character,  both  as  regards  Per- 
son AND  Property. 

We  liave  said  that  from  tlie  estal)lislied  prin- 
ciple in  tlie  law  of  nations  whicli  recognizes  tlie 
identity  between  the  wealth  of  the  nation  and  that 
of  the  aggregation  of  individuals  composing  the 
nation,  many  important  rights  accrue  to  the  citizen 
in  time  of  war,  to  enable  him  to  indemnify  his  own 
or  the  state's  injuries,  by  capture  and  reprisals  of 
the  jDroperty  of  the  enemy.  Before  considering 
the  subject  of  re23risals,  captures,  and  confiscation,  it 
is  important  to  determine  who  are,  in  legal  intend- 
ment, alien  enemies,  and  who  are  clothed  with  that 
hostile  character  as  to  subject  their  property  to 
seizure  and  confiscation  as  law^ful  prize ;  and  also 
who  are  to  be  regarded  as  possessing  the  character 
of  lawful  belligerents,  with  the  rights  of  such  at  the 
hands  of  neutral  nations. 

AHen  enemy        An  alien  enemy  is  one  who  is  under  the  alle- 

defined.  •  n  ,      ,  • .  t 

glance  oi  a  government  at  war  with  our  own. 

Where  the  allegiance  due  is  of  that  permanent 
character  which  attaches  to  the  citizen  or  subject,  as 
such,  there  is  no  difficulty  in  determining  his  posi- 
tion and  liabilities.  His  hostility  is  coeval  with, 
and  as  permanent  as,  his  allegiance.    It  begins  with 


HOSTILE   CHARACTER.  109 

the  commencement  of  his  country's  quarrel,  and 
ends  only  with  its  termination. 

But  there  are  those  who  are  clothed  with  such 
character  of  hostility  as  subjects  them  and  their 
property  to  all  the  liabilities  and  forfeitures  to 
which  that  of  permanent  alien  enemies  are  subject, 
and  yet  do  not  owe  permanent  allegiance  to  the 
nation  at  war  with  us — and  it  is  important  to  con- 
sider the  several  and  various  circumstances,  of  more 
or  less  complication,  which  occasion  and  determine 
such  a  hostile  character. 

Hostile  character  may  be  cast  upon  a  person  by  Hostile  char- 

,.  T./.M'ii  1  j_  i»      acter  cast  upon 

his  ownership  of  soil  m  the  enemy  s  country,  so  tar  persons  ttIio 
as  to  subject  the  productions  of  that  soil  to  seizure  enlnJies/''^'' 
as  lawful  prize. 

"  It  cannot  be  doubted,"  says  Lord  Stowell,  "  that 
there  are  transactions  so  radically  and  fundamental- 
ly national,  as  to  impress  the  national  character,  in- 
dependent of  peace  or  war,  or  the  local  residence  of 
the  parties? 

"  The  produce  of  a  person's  own  plantation  in  the  impressed 
colony  of  the  enemy,  though  shipped  in  time  of  "p^^p'"^?® 
peace,  is  liable  to  be  considered  as  the  property  of 
the  enemy,  by  reason  that  the  proprietor  has  in- 
corporated himself  with  the  permanent  interests  of 
the  nation,  as  a  holder  of  the  soil,  and  is  to  be  taken 
as  a  part  of  that  country  in  that  particular  trans- 
action, independent  of  his  own  personal  residence 
and  occupation."^ 

In  another  case,  the  same  learned  judge  says: 
"  Certainly  nothing  can  be  more  decided  and  fixed 
than  the  principle  of  this  court  and  of  ths  Supreme 

'   The  Vrow  Anna  Catharina,  5  Rob.,  161. 


110  HOSTILE    CHARACTER. 

Court,  upon  every  solemn  argument  there,  that  tlie 
Ownership  of  possessiou  of  the  soil  do«s  im]iress  upon  the  owner 
the  character  of  the  country,  whatever  the  local 
residence  of  the  owner  may  be.  This  has  been  so 
re2:)eatedly  decided,  both  in  this  and  the  Superior 
Coui't,  that  it  is  no  longer  open  to  discussion.  No 
question  can  be  made  on  the  point  of  law  at  this  day. 
"First,  then,  it  appears  that  the  produce  of  the 
hostile  soil  is  to  be  considered  as  bearing  a  hostile 
character;  and  certainly,  if  any  property  ought  to 
be  considered  as  bearing  such  a  character  at  all,  for 
purposes  of  seizure,  nothing  can  be  more  reasonable 
than  that  the  products  of  the  enemy's  land,  one  of 
the  greatest  sources,  and  as  some  have  supposed,  the 
sole  source  of  national  wealth,  should  be  regarded 
as  legitimate  prize.  That  the  interests  of  friends 
may  sometimes  be  involved  in  our  vengeance  upon 
enemies,  is  a  matter  which  it  is  natural  to  regret, 
but  impossible  to  avoid.  The  administration  of 
•  public  rules  admits  of  no  private  exception,  and  he 
who  clings  to  the  profits  of  a  hostile  connection, 
must  be  content  to  bear  its  losses  also.  Secondly, 
it  will  be  found  that  a  settlement  in  a  hostile  juris- 
Residence  in  a  dictiou,  whether  it  be  by  residence,  or  merely  by 
diction.  ^""^^^  the  maintenance  of  a  commercial  establishment, 
impresses  on  the  person  so  settling,  the  character 
of  the  enemies  among  whom  he  settles,  in  regard 
to  such  of  his  commercial  transactions  as  are  con- 
nected with  that  settlement. 
Uniformity  of      "Tlic  American  jui'ists  and  courts  have  repeatedly 

rule  as  to  im-  •i,i  t  it  t*.  j_ 

pression  of     recoguized  the  rule  as  a  reasonable  and  just  one  to 
hostile  char-    ^^  acceded  to  by  all  maritime  nations."^ 

'  Kent's  Com.  I,  82  ;   Bentzon  vs.  Bogle,  9  Cranch,  191 ;    The 
Ann  Greene,  1  Gall,  284;  The  Venus,  8  Cranch,  253. 


WHAT   COlSrSTITUTES   A   HOSTILE   CHAKACTER.  HI 

The  sliip  President  was  captured  by  an  Englisli 
privateer,  on  a  voyage  to  Europe  from  tlie  Cape  of 
Good  Hope,  then  iu  possession  of  Holland,  with 
whom  Great  Britain  was  at  war.  A  claim  was  filed 
on  behalf  of  Mr.  J.  Emslie,  as  a  citizen  of  the  Unit- 
ed States.  It  appeared  that  he  was  born  in  Brit- 
ain, but  had  settled  at  the  Cape  of  Good  Hope 
during  the  preceding  war,  and  had  been  employed 
there  as  American  consul.  In  pronouncing  the  de- 
cree of  the  court  in  this  case.  Lord  Stowell  said : 
"  The  court  must,  I  think,  surrender  every  principle 
on  which  it  has  acted,  in  considering  the  question 
of  national  character,  if  it  were  to  restore  this 
vessel.  The  claimant  is  described  to  have  been, 
for  many  years,  settled  at  the  Cape,  "with  an  estab- 
lished house  of  trade,  and  as  a  merchant  of  that 
place,  and  must  be  taken  as  a  subject  of  the  enemy's 
country."^ 

During  the  last  war  between  Great  Britain  and 
Holland,  there  seems  to  have  been  a  very  general 
misapprehension  among  the  merchants  of  the  Unit- 
ed States,  that  they  were  entitled  to  retain  all  the, 
privileges  of  American  citizens,  without  regard  to 
the  fact  of  their  residence  and  occupation  in  an- 
other country.  Numerous  decisions  of  the  English 
courts  corrected  this  error,  to  the  not  inconsiderable 
cost  of  those  who  had  unhappily  fallen  into  it.  A 
ship  was  captured  on  a  voyage  from  Curacoa,  then 
a  Dutch  possession,  and  claimed  in  the  English 
court,  where  she  was  libeled  as  prize^  by  one  who 
w-as  first  described  as  an  American  merchant,  but 
^vho,  upon  further  proof  being  required   by   the 

'  The  President,  5  Rob.,  277. 


112  WHAT   CONSTITUTES    A   HOSTILE    CHAEACTEE. 

coui't,  was  ascertained  and  described  to  be  a  person 
having  a  house  of  trade  and  actually  residing  at 
Cui^agoa.  The  ship  was  condemned  as  lawful  prize; 
— Lord  Stowell  declarino; :  "  The  claimant  is  un- 
doubtedly  to  be  considered  an  enemy  at  the  com- 
mencement of  the  transaction,  Holland  being,  at 
that  period  of  time,  the  enemy  of  this  country."^ 

"  No  position,"  said  Lord  Stowell,  in  another 
case,  "  is  more  establislied,  than  this,  that  if  a  per- 
son goes  into  another  country,  and  engages  in  trade, 
and  resides  there,  he  is,  by  the  law  of  nations,  to  be 
considered  a  member  of  that  country."^ 

In  this  last  case,  a  cargo  which  belonged  to  Mr. 
Millar,  an  x\merican  consul  resident  at  Calcutta, 
and  which  had  been  taken  in  trade  with,  the  enemy, 
was  condemned  as  the  property  of  a  British  mer- 
chant resident  at  Calcutta,  and  engaged  in  illegal 
commerce. 

"  It  is  said  to  be  hard,"  said  Lord  Stowell,  "  that 
Mr.  Millar  should  incur  the  disabilities  of  a  Britisli 
subject,  at  the  same  time  that  he  receives  no  advan- 
tages from  that  character ;  but  I  cannot  concede  to 
that  representation,  because  he  is  in  the  actual  re- 
ceipt of  the  benefit  of  protection  for  his  person  and 
commerce  from  Britisli  arms  and  British  laws — un- 
der an  existing  British  administration  in  the  coun- 
try ;-— he  may  be  subject  to  some  limitations  of  com- 
merce incident  to  such  establishments,  which  would 
not  occur  in  Europe,  but  he  must  take  his  situation 
with  all  its  duties,  and  among  those,  the  duty  of  not 
i  rading  with,  tke  enemies  of  this  country." 


'  The  Anna  Catherina,  4  Rob.,  107. 
'  The  Indian  Chief,  3  Rob.,  12. 


WHAT    COIS^STITUTE.-^    A    HOSTILE    CHAEACTEE.  H;', 

The  common  law  courts  of  England  have  recog-  Rule  applied 

IT  T     T   J.1  1       ±    '        -[  in   common 

nized  and  applied  the  same  doctrme/  law  courts. 

In  the  United  States,  this  principle  seems  to  have 
been  very  fully  established  by  numerous  decisions. 

Chancellor  Kent  says :  "  This  principle,  that,  for 
all  commercial  purposes,  the  domicil  of  the  party, 
without  reference  to  the  place  of  birth,  becomes  the 
test  of  national  character,  has  been  repeatedly  and 
explicitly  admitted  in  the  courts  of  the  United 
States.  If  he  reside  in  a  belligerent  country,  his 
property  is  as  liable  to  be  captured  as  enemy's  prop- 
erty;  as,  if  he  resides  in  a  neutral  country,  he  enjoys 
all  the  privileges,  and-*is  subject  to  all  the  incon- 
veniences of  the  neutral  trade.  The  general  rule  is, 
that  a  person  living  honafide  in  a  neutral  country, 
is  fully  entitled  to  carry  on  a  trade  to  the  same 
extent  as  the  native  merchants  of  the  country  in 
which  he  resides,  provided  it  is  not  inconsistent 
with  his  native  allegiance.^ 

In  a  case  which  was  determined  in  the  House  of 
Lords,  in  1802,  the  same  principle  seems  to  have 
been  established,  even  beyond  the  reservation  of  a 
native  allegiance.'  In  this  case,  a  British-born  sub- 
ject, resident  at  the  English  &ctory  at  Lisbon,  was 
accorded  the  privilege  of  a  Portuguese  character,  so 
far  as  to  render  his  trade  with  Holland  (then  at  war 
with  England,  l)ut  not  with  Portugal)  unimpeach- 
able as  illicit  trade. 

There  is,  indeed,  one  case  at  law  in  the  English 
courts,*  in  wdiich  the  question  was  involved,  and  in 

"  ^  McConnel  vs.  Hector,  2  Bos.  &  Pul,  113;  De  Laneville  vs. 
Phillips,  2  New  Rep.,  97, 

M^cnt's  Com.,  I.,  83;   The  Emanuel,  1  Rob.,  296. 
'  The  Danous,  4  Rob.,  2.55. 

•»  Melton  vs.  De  Mello,  2  East.,  234 ;   2  Camp.,  420. 
8 


114  WHAT    CONSTITUTES    A    HOS:<;iLE    CHARACTEE. 

wliicli  Lord  Ellenborougli  takes  no  notice  of  tlie 
preceding  decisions;  but  the  observations  of  his 
lordsliip  in  that  case,  cannot  be  regarded  as  at  all 
equivalent  to  a  denial  of  the  doctrine,  and  the  more 
especially  as  he  advises  that  the  plaintiff  go  back 
to  the  Court  of  Admiralty,  and  have  the  matter  set 
right  there.  In  a  subsequent  case  at  law,  the  rule 
was  applied  to  a  natural-born  subject  of  Great  Brit- 
ain, domiciliated  in  the  United  States,  and  it  was 
determined  that  he  might  lawfully  trade  to  a  coun- 
try at  war  with  England  but  at  peace  with  the 
United  States.-" 

In  this  connection,  the  most  important  question 
for  determination  is,  what  constitutes  residence. 
This  would,  at  first,  ap2:)ear  to  be  a  question  of 
very  simple  solution,  but  it  has  been  complicated 
by  the  subtleties  of  merchants,  to  such  an  extent  as 
to  have  occasioned  much  discussion  and  given  rise 
to  several  direct  decisions. 

The  citizen  or  subject  of  one  nation  may,  by  his 
employment  and  residence  in  another,  acquire  a 
new  national  character  for  commercial  purposes — 
although  he  may  not  thereby  divest  himself  of  his 
national  character  for  political  purposes.  His  alle- 
giance is  still  due  to  the  country  of  his  l)irth ;  such 
a  j)erson  residing  in  a  neutral  state  is  at  liberty  to 
trade  with  the  enemies  of  his  country  in  all  arti- 
cles except  such  as  are  contrnhand — a  trade  iii  such 
would  be  in  violation  of  his  allegiance.^ 
What  consti-  As  to  the  questiou,  what  constitutes  such  a  resi- 
dence in  a  hos- dence  as  fixes  upon  the  party  a  hostile  character 
towards  that  state  with  which  the  country  of  his 

•  Bell  vs.  Reid,  M.  &  S.,  726. 

*  The  Ann,  Dodson,  222. 


WHAT    COjS^STITUTES    A    HOSTILE    CHAllACTEIt.  115 

residence  is  at  war,  it  appears  to  be  conceded  tliat  ^^  country  to 
the  first  point  for  determination  is,  tlie  true  intent  tue  character, 
of  the  party— is  it  or  not  a  residence  with  the  in- 
tention of  remaining  ?     ''  I  do  not,"  says  Lord  Stow- 
ell  in  an  early  case,  "mean  to  lay  down  so  harsh  a 
rule,  as  that  two  voyages  from  France  should  make 
a  man  a  Frenchman — but  the  claimant  appears  to 
have  had  a  continuous  residence  there  durino;  the 
interval  of  his  voyages,  and  to  have  had  that  resi 
dence  also  with  the  intention  of  remaining."^     In 
that  case,  the  animus  manendi  was  evidently  re- 
garded by  the  court  as  the  prominent  point  to  be 
settled,  in  determining  the  question  of  residence  to 
fix  a  hostile  character. 

In  another  case,^  the  same  learned  judge  discusses 
the  question  at  much  length,  and  says :  "  Of  the 
few  principles  that  can  be  laid  down  generally,  I 
may  venture  to  hold,  that  time  is  the  grand  ingre- 
dient in  constituting  domicil — I  think  that  hardly 
enouo:h  is  attributed  to  its  effects.  In  most  cases, 
it  is  unavoidably  conclusive.  It  is  not  unfrequent- 
ly  said,  that  if  a  person  comes  only  for  a  special 
purpose,  that  shall  not  fix  a  domicil.  This  is  not  to 
be  taken  in  an  unqualified  latitude,  and  without 
some  respect  had  to  the  time  which  such  a  purpose 
may  or  shall  occupy — -for  if  the  purpose  be  of  a 
nature  that  v[iiij  prohahly^  or  does  actually,  detain 
the  person  for  a  great  length  of  time,  I  cannot  but 
think  that  a  general  residence  might  grow  upon  the 
special  purpose.  A  special  purpose  may  lead  a  man 
to  a  country,  where  it  shall  detain  him  the  whole 
of  his  life.     A  man  comes  here  to  follow  a  law- 

'  The  Bernon,  1  Rob.,  162.       ^  The  Harmony,  2  Rob.,  324. 


'116  WHAT    CONSTITUTES    A    HOSTILE    CUAEACTEE. 

suit.  It  may  happen,  and  indeed  is  often  used,  as 
a  ground  of  vulgar  and  unfounded  reproacli  (un- 
founded as  matter  of  reproacli,  tliougli  the  fact  may 
be  true)  on  the  laws  of  this  country — that  it  may 
la'st  as  long  as  himself  Some  suits  are  famous  in 
our  juridical  history  for  having  outlived  generations 
of  suitors.  I  cannot  but  think,  that  against  such  a 
long  residence,  the  j)lea  of  an  original  special  pur- 
pose could  not  be  averred.  It  must  be  inferred,  in 
such  a  case,  that  other  purposes  forced  themselves 
upon  him,  and  mixed  themselves  with  his  original 
design,  and  impressed  upon  him  the  character  of 
the  country  where  he  resided.  Supj^ose  a  man 
comes  into  a  belligerent  country  at  or  before  tlie 
beginning  of  a  war,  it  is  certainly  reasonable,  not 
to  bind  him  too  soon,  to  an  acquired  character,  and 
to  allow  him  a  fair  time  to  disengage  himself^— but 
if  he  continues  to  reside  during  a  good  23art  of  the 
war,  contributing  by  payment  of  taxes,  and  other 
means,  to  the  strength  of  that  country,  I  am  of 
opinion  that  he  could  not  plead  his  special  purpose, 
with  any  effect,  against  the  rights  of  hostility.  If 
he  could,  there  would  be  no  sufficient  guard  against 
the  fraud  and  abuses  of  mashed,  pretended,  original 
and  sole  purposes  of  a  long  continued  residence. 
There  is  a  time  which  will  estop  such  a  plea.  No 
rale  can  hx  the  term  a  priori — but  such  a  time 
there  must  be. 

In  proof  of  the  efficacy  of  mere  time,  it  is  not 
impertinent  to  remark,  that  the  same  quantity  of 
business,  which  would  not  fix  a  domicil  in  a  certain 
space  of  time,  would  nevertheless  have  that  effect, 
if  distributed  over  a  larger  time.  Suppose  an 
American  comes  to  Europe  with  six  contempoiar} 


WHAT    CONSTITUTES   A   HOSTILE   CHAEACTER.  117 

cargoes,  of  wMcli  lie  had  the  present  care  and  man- 
asfement,  meanino;  to  return  to  America  immediate- 
ly — they  would  form  a  different  case  from  that  of 
the  same  American  coming  to  any  particular  coun- 
try of  Europe,  with  one  cargo,  and  fixing  hinself 
there  to  receive  five  remaining  cargoes,  one  in  each 
year  successively.  I  repeat,  that  time  is  the  great 
aojent  in  this  mattei\  It  is  to  be  taken  in  a  com- 
pound  ratio  of  the  time  and  the  occupation,  with  a 
great  preponderance  on  the  article  of  time.  Be  the 
occupation  what  it  may,  it  cannot  happen,  but  with 
few  exceptions,  that  mere  length  of  time  shall  not 
constitute  a  domicil." 

But  if  the  animus  manendi  he  proved  aliunde^ 
the  time  of  the  residence  becomes  of  no  moment 
in  the  determination  of  the  question  of  hostile 
character. 

In  another  case,'  Lord  Stowell  observed :  "  Proof 
of  mere  recency  of  establishment,  will  avail  noth- 
ing, if  the  intention  of  making  a  permanent  resi- 
dence there,  was  fully  fixed  upon  the  party."  * 

In  cases  where  it  is  shown  that  there  was  really 
no  intention  of  remaining,  but  on  the  contrary  a 
frustrated  intention  of  departing,  the  abode  is  not 
considered  as  a  residence  to  any  hostile  purpose. 

A  British-born  subject  had  been  settled  as  a 
merchant  -  at  Flushing,  in  Holland,  but  upon  the 
apparent  approach  of  hostilities  between  that  coun- 
try and  Great  Britain,  he  adopted  measures  for  his 
removal  and  return  to  England.  In  July,  1803,  as 
it  appeared  in  proof,  he  actually  effected  his  escape 
and  returned  to  England.     He  had  dissolved  his 

'•  Th    Diana,  5  Rob.,  60. 


118  WHAT   CONSTITUTES    A   HOSTILE    CHAKACTER. 

coniiiiercial  partnersLip  in  Hollaiid,  and  had  in 
trutli  only  continued  to  reside  there  after  the  war, 
by  reason  of  the  unwarrantable  detention  by  the 
.  government  of  Holland,  of  Englishmen  found  there 
at  the  breaking  out  of  hostilities.^  "  Under  these 
circumstances,"  says  Lord  Stowell,  "it  would,  I 
think,  be  going  farther  than  the  princij^le  of  law 
requires,  to  conclude  this  person  by  his  former  oc- 
cupation, and  by  his  constrained  residence,  so  as 
not  to  admit  him  to  have  taken  himself  out  of  the 
effect  of  intervening  hostilities  by  the  means  which 
he  had  used  for  his  removal." 

This  doctrine  is  very  clearly  recognized,  though 
incidentally  passed  uj^on,  by  Lord  Ellenbbrough, 
in  two  cases  subsequently  decided  by  him.^ 

It  is  obvious  that  it  should  require  fewer  cir- 
cumstances to  constitute  the  domicil  or  residence  of 
which  we  are  treating,  in  the  case  of  a  native  citi 
zen,  than  to  impress  the  national  character,  by  that 
means,  upon  one  who  is  originally  of  another  coun- 
try. 

M.  Lappiere  was  by  birth  a  Frenchman,  and 
present  in  a  French  colony  where  he  shipped  goods 
for  France.  The  goods  were  'captured,  and  he  made 
claim  as  a  merchant  of  America,  where  he  had  a 
permanent  residence  before  his  coming  to  the  French 
colony.  Lord  Stowell  said :  "  If  it  could  be  inferred 
that  he  had  been  originally  a  French  merchant,  and 
was,  at  the  time  of  his  shipment,  resident  in  St.  Do- 
mingo, and  shipping  to  old  France,  I  should  have 
hesitation  in  considering  him  a  Frenchman.     Had 

'  The  Oc(an,  5  Rob.,  90. 

'  Bromley  vs.  Hazcltine,  1  Camp.,  6  ;    0' Mealy  vs.  Wilson,  ib., 
482. 


W^AT    CONSTITUTES    A    HOSTILE    CHARACTER.  Ill) 

tile  shipment  been  made  fi-om  America,  Ms  asserted 
place  of  abode,  it  might  have  been  a  circumstance 
to  set  in  opposition  to  his  present  residence,  and 
might  afford  a  presumption  that  he  was  in  St.  Do- 
mingo only  for  temporary  purposes.  But  this  is  a 
shipment  to  France  from  a  French  colony,  and,  if 
the  person  is  to  be  taken  as  a  native  of  France,  the 
presumption  would  be  that  he  had  returned  to  his 
native  character  of  a  French  merchant."^ 

A  native-born  citizen  of  the  United  States,  before 
a  declaration  of  war,  emigrated  to  a  neutral  coun- 
try, and  there  acquired  a  doraicil.  Afterwards,  and 
durins^  the  continuance  of  the  war,  he  retui-ned  to 
the  United  States  and  reacquired  his  native  domicil. 
It  was  held  that  he  had  become  a  redinteg-rated 
American  citizen,  and  could  not  afterwards,  jici- 
grante  hello,  acquire  a  neutral  domicil  by  again  emi- 
grating to  his  adopted  country.^ 

Where  the  residence  is  a  voluntary  one,  and  en 
tirely  unrestrained,  whether  it  be  literal  and  actual, 
or  only  a  residence  by  implication,  it  is  considered, 
ordinarily,  as  a  complete  commercial  residence.  In 
the  celebrated  case  already  cited,^  it  was  objected 
against  the  right  of  the  captors  that  the  residence 
of  an  American  in  Calcutta  was  not  a  residence 
amons:  British  bellio-erents ;  that  the  Moojul,  havino- 
the  imj^erial  rights  of  Bengal,  the  king  of  Great 
Britain  does  not  hold  the  British  possessions  in  the 
East  Indies  in  the  right  of  the  sovereignty,  and  that 
therefore  the  character  of  British  merchants  does 

'  The  Virginie,  5  Rob.,  98. 

-  The  Dos  Hermanos,  2  Wheat.,  76 ;  The  Ann  Greene,  1  Gall., 
284. 

^  Th   Indian  Chvf,  3  Rob.,  12.  , 


jOQ  WHAT   CONSTITUTES   A   HOSTILE   CHAKACTER.* 

0 

m.t  uecessarily  attach  on  foreigners,  locally  resi- 
dent there.  This  objection  was  thus  disposed  of 
by  Lord  Stowell : 

"  Taking  it  that  such  a  paramount  sovereignty 
on  the  part  of  the  Mogul  princes  really  and  solidly 
exists,  and  that  Great  Britain  cannot  be  deemed  to 
possess  a  sovereign  right  there,  still  it  is  to  be  re- 
membered that,  wherever  a  mere  factory  is  founded 
in  the  eastern  part  of  the  world,  European  persons, 
trading  under  the  shade  and.  protection  of  those  es- 
tablishments, are  conceived  to  take  their  national 
character  from  that  association  under  which  they 
live  and.  carry  on  their  commerce.  It  is  a  rule  of 
the  law  of  nations,  applying  peculiarly  to  those 
countries,  and  is  different  from  what  prevails  or- 
dinarily in  Euroj^e,  and  the  western  parts  of  the 
world,  in  which  men  take  their  present  national 
character  from  the  general  character  of  the  country 
ill  which  they  are  resident,  and  this  distinction 
arises  from  the  nature  and  habits  of  the  countries. 
In  the  western  parts  of  the  world,  alien  merchants 
mix  in  the  society  of  the  natives,  access  and  inter- 
mixture are  permitted,  and  they  become  incorpo- 
rated to  almost  the  full  extent.  But  in  the  East, 
from  the  oldest  times,  an  immiscible  character  has 
been  kept  up,  foreigners  are  not  admitted  into  the 
general  body  and  mass  of  the  nation.  They  con- 
tinue strangers  and  sojourners,  as  their  fathers  were,, 
not  acquiring  any  national  character  under  the  gen- 
eral sovereignty  of  the  country,  and  not  trading 
under  any  recognized  authority  of  their  own  origi- 
nal country,  they  have  been  held  to  derive  their 
present  character  from  that  of  the  association  or  fac- 
tor}'  under  whose  protection  they  live  and  carry  ud 


WHAT   CONSTITUTES   A   HOSTILE   CHARACTER.  121 

• 

their  trade.  With  respect  to  establishments  in  Tur- 
key, it  was  declared  in  the  case  of  Mr.  Fremeaux,  in 
the  last  war,  that  a  merchant  carrying  on  trade  at 
Smyrna,  under  the  protection  of  the  Dutch  consul 
at  Smyrna,  was  to  ,be  considered  as  a  Dutchman, 
and  in  that  case  the  ship  and  goods  belonging  to 
Mr.  Fremeaux,  being  taken  after  the  order  of  repri- 
sals against  Holland,  were  condemned  as  Dutch 
property.  So  in  China,  and  I  may  say  generally 
throughout  the  East,  persons  admitted  into  a  fac- 
tory, are  not  known  in  their  own  peculiar  national 
character,  and  not  beino;  admitted  to  assume  the 
character  of  the  country,  they  are  considered  only 
in  the  character  of  that  association  or  factory. 

"  I  remember  perfectly  well,  in  the  case  of  Mr. 
Constant  de  Rubecque,  it  was  the  opinion  of  the 
Lords,  that  although  he  was  a  Swiss  by  birth,  and 
no  Frenchman,  yet  if  he  had  continued  to  trade  in 
the  French  factory  in  China,  which  he  had  fortu- 
nately quitted  before  the  time  of  capture,  he  would 
have  been  liable  to  be  considered  as  a  Frenchman. 

"  I  am,  however,  inclined  to  think  that  these  con- 
siderations are  unnecessary,  because,  though  the 
sovereignty  of  the  Mogul  is  occasionally  brought 
forward  for  purposes  of  policy,  it  hardly  exists, 
otherwise  than  as  a  phantom.  It  is  not  applied  in 
any  way  for  the  actual  regulation  of  our  establish- 
ments. This  country  exercises  the  jiower  of  de- 
claring war  and  peace,  which  is  among  the  strong- 
est marks  of  actual  sovereignty ;  and  if  the  high, 
or,  as  I  might  almost  say,  this  empyi'ean  sovereign- 
ty of  the  Mogul,  is  sometimes  brought  down  from 
the  clouds,  as  it  were,  for  pui'poses  of  policy,  it 
by  no  means  interferes  with  that  actual  authority 


122  WHAT   CONSTITUTES   A   HOSTILE    CHAEACTEE. 

wliicli  this  country,  and  the  East  India  Company 
— a  creature  of  this  country — exercise  there  with 
full  effect.  The  law  of  treason,  I  ap2:)rehend,  would 
apply  to  Eiu'opeans  living  there,  in  full  force.  It 
is  nothing  to  say  that  some  particular  parts  of  our 
civil  code  are  not  applicable  to  the'religious  or  civil 
habits  of  the  Mahomedan  or  Hindoo  natives,  and 
that  they  are,  on  that  account,  allowed  to  remain 
under  their  own  laws.  I  say  this  is  no  exception ; 
for  with  respect  to  internal  regulations,  there  is, 
amongst  oui'selves  in  this  country,  a  peculiar  sect 
— the  Jews — that,  in  matters  of  legitimacy,  and  on 
other  important  subjects,  are  governed  by  their  ovm 
particular  regulations,  and  not  by  all  the  municipal 
laws  of  this  country,  some  of  which  are  totally  in- 
applicable to  them.  It  is,  besides,  observable  that 
our  own  acts  of  Parliament,  and  our  public  treaties, 
have  been  by  no  means  scruj^ulous,  in  later  times, 
in  describing  the  country  in  question  as  the  terri- 
tory of  Great  Britain. 

"  In  the  American  treaty,  the  particular  expression 
occurs,  that  the  citizens  of  America  shall  be  admit- 
ted and  hospitably  received  in  all  the  seaports  and 
harbors  of  the  British  territories  in  India.  The 
late  case  in  the  Court  of  King's  Bench  (  Wihon  vs. 
Marryat^  8  Term  E.,  and  1  Bos.  and  PuL,  430), 
arising  upon  the  interpretation  of  that  treaty,  and 
in  which  it  appears  to  have  been  the  inclination  of 
that  court  to  hold  our  possessions  in  India  to  come 
within  the  operation  of  the  navigation  acts,  gave 
occasion  to  an  act  of  Parliament  in  which  the  term 
British  teiTitory  is  borrowed  fi'om  the  treaty. 

"There  is,  likewise,  a  general  act  of  37  Geo.  III. 
c.  117,  for  the  allowance  of  neutral  traders  in  India, 


WHAT    COlSrSTITUTES    A    HOSTILE    CHAEACTER.  123 

wliicli  expressly  uses  tlie  same  term,  reciting  that  it 
is  expedient  that  the  ships  and  vessels  of  countries 
and  states  in  amity  with  his  majesty,  should  he  al- 
lowed to  import  goods  and  commodities  into,  and 
ex2)ort  the  same  from,  the  British  territories  in  In- 
dia. It  is,  besides,  an  obvious  question,  to  whom 
are  the  credentials  of  this  gentleman,  as  consul,  ad- 
dressed ?  Certainly  to  the  British  government ;  to 
the  East  India  Company,  and  not  to  the  Great  Mo- 
gul. What  is  the  condition  of  a  foreign  merchant 
residing  there?  From  attention  to  the  argument 
of  a  gentleman  whose  researches  have  been  partic- 
ularly turned  to  subjects  connected  with  the  East, 
I  have  made  inquiry  of  a  person  of  the  greatest 
authoi'ity  on  such  a  subject,  who  is  just  returned 
from  the  highest  judicial  situation  in  that  country, 
and  the  result  is,  as  on  general  principles  I  should 
certainly  have  expected — that  a  foreign  merchant 
resident  there,  is  just  in  the  same  situation  as  a 
British  merchant,  subject  to  the  same  obligations, 
bound  to  the  same  duties,  and  amenable  to  the 
same  ^common  authority  of  British  tribunals." 

Periodical  absence,  on  professional  or  other  avo- 
cations, will  not  divest  a  person  of  that  national 
character  communicated  to  him  by  his  residence,  if 
that  residence  be  fixed,  with  the  voluntary  inten- 
tion of  remainino^.-^ 

Nor,  on  the  other  hand,  can  a  merchant,  who  has 

a  fixed  residence,  and  is  carrying  on  business  at  the 

place  of    his  birth,  acquire  a  foreign   commercial 

.character  by  occasional  visits  to  a  foreign  country.^ 


'  The  Junge  Euiter,  1  Acton,  116. 
'  The  Nereide,  9  Cranch,  388. 


104  WHAT   COj^STITUTES   A   HOSTILE    CHAEACTEE. 

Personal  resi-      Ju  order  to  clotlie  a  person  with  a  national  char- 
re^qiSitr'      acter,  for  commercial  pui-jDOses,  an  actual  personal 

residence  in  the  hostile  or  neutral  country,  is  by  no 

means  an  overruling  necessity. 
Estabiisiied         It  is  undoubtedly  true,  that  a  merchant,  engaged 
agency  su  ci-  .^  ^^^^^^  ^^^  ^  foreign  couutry,  and  while  residing 

in  his  own,  carries  on  his  transactions  by  means  of 
a  resident  agent  in  the  foreign  country,  does  not 
thereby,  necessarily,  and  as  a  rule,  acquire  the  char- 
acter of  the  nation  of  his  agent's  residence.  But 
where  the  employment  of  the  agent  is  in  that  pecu- 
liar service,  as  to  imply  that  the  employer  considers 
himself  as  vii-tually  a  resident  of  the  country,  in 
other  words,  where  the  agent,  instead  of  acting  as 
the  mere  business  representative,  the  factor  or  at- 
torney of  his  employer,  acts  as  his  deputy,  in  such 
cases  the  employer  would  undoubtedly  be  consid- 
ered as  having  taken  upon  himself  the  national 
character  of  the  country  of  such  an  ao-ent's  resi- 
dence. 
Hostile  char-      j^  coutract  was  made  with  a  hostile  government, 

actcr  impress-  i         •,!  i  t 

ed  by  character  aiKi  ouc  whicli  was  endowecl  With  such  peculiar 
privileges  as  to  give  to  the  contractors,  who  were 
neutrals,  even  greater  advantages  than  they  would 
have  enjoyed  had  they  been  Spanish  merchants — 
Spain  being  the  hostile  contracting  government. 
For  the  pui'pose  of  executing  this  contract,  the  mer- 
cliaut  contractors  thought  fit  to  commission  a  spe- 
cial agent  to  reside  in  the  hostile  territory.  The 
question  was,  the  effect  of  such  residence  by  such 
an  agent,  upon  the  national  character  of  the  princi- 
pals; and  upon  this  question  Lord  Stowell  thus 
speaks  in  his  judgment: 

"  It  is  nut  indeed  held,  in  general  cases,  that  a 


WHAT   CONSTITUTES    A   HOSTILE    CHARACTEE.  123 

neutral  merchant,  trading  in  an  ordinary  manner  to 
the  country  of  a  belligerent,  does  contract  the  char- 
acter of  a  person  domiciled  there,  by  the  mere  resi- 
dence of  a  stationed  agent,  because,  in  general  cases, 
the  eifect  of  such  a  residence  is  counteracted  by  the 
nature  of  the  trade  and  the  neutral  cliaracter  of  the 
British  merchant  himself 

"  But  it  may  be  very  different  where  the  principal 
is  not  trading  on  the  ordinary  footing  of  a  foreign 
merchant,  Init  as  a  privileged  trader  of  the  enemy. 
There,  the  natm'e  of  his  trade  does  not  protect.him ; 
on  the  contrary,  the  trade  itself  is  the  privileged 
trade  of  the  enemy,  j)utting  him  on  the  same  foot, 
ing  as  their  own  subjects,  and  even  above  it.'" 

This  same  principle  is  fully  recognized  by  the  Doctrine  or 
decisions  of  the  courts  of  the  United  States.  And  t5tate,s^co^lrta 
without  resort  to  a  solution  of  the  question  of  na- 
tional  domicH,  if  one  embarks  in  the  ordinary  or  ex- 
traordinary commerce  of  an  enemy's  country,  upon 
the  same  footing  and- with  like  advantages  as  a  na- 
tive resident  citizen — the  property  employed  by  him 
in  that  commerce  is  held  to  be  incorporated  into 
the  general  commerce  of  the  enemy's  country,  and 
subject  to  confiscation  as  lawful  prize — be  the  resi- 
dence of  the  merchant  actual  or  implied,  where  it 
mav.^  In  the  same  case,  it  was  determined,  that  a 
shipment  made  by  a  house  in  the  enemy's  country 
on  account  and  risk  of  an  exclusively  neutral  part- 
ner or  house,  there  being  every  evidence  of  good 
faith  in  the  transaction,  was  not  subject  to  confisca- 
tion as  prize  of  war,  and  equally  correct  would  be 

•     '  The  Anna  Cathcrina,  4  Rob.,  107. 
'  San  Jose  Tndiano,  2  Gall.,  268. 


126  WHAT    COjSrSTITUTEb    A    HOSTILE    CHARACTEE. 

the  application  of  tLe  j^rincij^le  under  converse  cir- 
cumstances— tliat  is,  a  shipment  made  by  a  partner 
or  agent  domiciled  in  a  foreign  country,  to  a  hona 
fide  neutral  house  or  principal,  on  the  exclusive  ac 
count  of  the  latter. 
Sipiicltion  ^^  ^  person  holding  the  office  of  consul  in  a  foreign 
from  nature  of  state,  as  wc  have  seen  in  the  case  of  Tlie  Indian 

the  omce.  , 

Chiefs  before  cited,  is  deemed  a  resident  of  that 
state  where  his  official  commission  implies  a  resi- 
dence. This  has  been  held  to  be  true  even  where 
there  is  no  actual  residence  there  by  the  consul,  but 
his  duties  are  performed  there  by  deputies  of  his 
appointment — the  appointment  of  deputies  being 
considered  proof  that  he  regards  himself  as  retain- 
ing the  office  to  which  this  implied  residence  at- 
taches, though  he  may  have  found  it  convenient  to 
avoid  the  personal  burden  of  its  functions.  In  a 
case  before  cited,  in  another  connection,^  the  claim- 
ant represented  himself  as  an  American,  but  in  his 
affidavit  stated  that  the  United  States  government 
had  appointed  him  consul-general  to  Scotland,  al- 
though he  had  acted  no  farther  in  that  capacity 
than  to  appoint  deputies. 

Lord  Stowell  said :  "  It  will  be  a  strong  circum- 
stance to  aifect  him  with  a  British  residence,  as  long 
as  there  are  persons  acting  in  an  official  station  here, 
and  deriving  their  authority  from  him." 
Importance  of      g^^f  as  has  been  repeatedly  affirmed,  the  animus 

the  ammus  '       _  ^   ^^  '>  ^      '  ' 

manendi  in  de-  manendi  is  the  decisive  proof  of  residence.     To  es- 

dence.   °       tablisli  this  intention  of  the  mind,  the  circumstances 

in  evidence  need  not  be  numerous,  nor  of  a  public 

'  The  Dree  Gehroeders^  4  Rob.,  232;   Vide  The  En(traught, 
1  Rob.,  21. 


WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEK.  127 

or  notorious  character.  In  one  case,  the  claimant 
urged  against  the  presumption  by  the  proof  of  his 
residence  in  a  hostile  country,  that  he  had  no  fixed 
counting-house  there.  But  Lord  Stowell  said,  "that 
he  had  no  fixed  counting-house  in  the  enemy's  coun- 
try, will  not  be  decisive.  How  much  of  the  great 
mercantile  concerns  of  this  country  is  carried  on  in 
coffee-houses  ?  A  very  considerable  portion  of  the 
great  insurance  business  is  so  conducted.  It  is,  in- 
deed, a  vain  idea,  that  a  counting-house  or  fixed  es- 
tablishment is  necessary  to  make  a  man  a  merchant 
of  any  j^lace.  If  he  is  there  himself,  and  acts  as  a 
merchant  of  that  place,  it  is  sufficient,  and  the  mere 
want  of  a  fixed  counting-house  there,  will  be  no 
breach  in  the  mercantile  character,  which  may  well 
exist  without  it."^ 

Another  principle  upon  the  subject  of  hostile  Hostile  ciiar- 

1  J.        jy  •!  11  xi     acter  impress- 

character  tor  commercial  purposes  has  been  estab-  ed  by  peculiar 
lished  by  numerous  authorities.  It  is  nearly  con-  J^afflc*^*^'  ^^ 
nected  with  the  question  of  residence,  but  results 
from  the  peculiar  character  of  the  commerce  or  traf- 
fic engaged  in.  In  an  early  case,  it  was  declared  by 
Lord  Stowell,  to  be  "a  doctrine  supported  by 
strong  princi23les  of  equity  and  propriety,  that  there 
is  a  traffic  which  stamps  a  national  character  in  the 
individual,  independent  of  that  character  which 
mere  personal  residence  may  give — and  it  was  laid 
down  in  the  case  of  the  '  Nancy  and  other  ships,' 
which  was  heard  before  the  Lords,  on  the  9th  of 
April,  1798,  that  if  a  person  entered  into  a  house 
of  trade  in  the  enemy's  country,  in  time  of  war,  or 

*  The  Jonge  Klassina,  5  Rob.,  297. 


128  WHAT    CONSTITUTES    A    HOSTILE    CIIAIIACTER. 

continued  tliat  connection  during  tlie  war,  lie  sliould 
not  protect  himself  by  mere  residence  in  a  neutral 
country."^ 

The  maintenance  of  a  commercial  house  or  es- 
tablishment in  a  hostile  country,  either  personally 
or  by  agent,  impresses  the  person  with  a  hostile 
character,  with  reference  to  so  much  of  the  com- 
merce as  is  connected  with  that  establishment. 

The  citizen  or  subject  of  a  belligerent,  residing 
or  maintaining  a  commercial  house  in  the  country 
of  the  adverse  belligerent,  is  deemed  as  possessed 
■  of  a  hostile  character,  so  far  as  to  subject  to  seizure 
such  of  his  property  as  is  concerned  in  the  com- 
merce of  his  foreign  estal^lishment. 

So,  too,  the  citizen  of  a  neutral  nation,  residing 
or  maintaining  a  commercial  establishment  in  the 
territory  of  a  belligerent,  is  deemed  as  possessed  of 
a  hostile  character  towards  the  other  belligerent,  so 
'  far  as  to  justify  the  seizure  of  his  property  that  is 

connected  with  his  commerce  in  the  belligerent 
nation.  And  a  citizen  of  a  belligerent  state,  resid- 
ing or  maintaining  a  commercial  establishment  in  a 
neutral  state — is  deemed  a  neutral,  both  by  his  na- 
tive country  and  by  the  adverse  belligerent — and 
with  reference  alike  to  the  trade  carried  on  by  him 
witli  the  adverse  belligerent,  and  with  all  the  rest 
of  the  world. 

The  residence  only  affects  the  particular  trade. 
As  was  said  by  Lord  Stowell  in  a  case  before 
cited  :^  "  A  man  having  mercantile  concerns  in  two 
countries,  and  acting  as  a  merchant  of  both,  must 


'  The  Vigilantia,  1  Rob.,  1 3. 

*  The  Jonge  Klassina,  5  Rob.,  297. 


WHAT    CO]!^STITUTES    A    HOSTILE    CHAKACTEE.  129 

be  liable  to  be  considered  as  a  subject  of  botli, 
witli  regard  to  tlie  transactions  originating  respect- 
ively in  those  countries." 

And  the  same  learned  judge,  in  another  case^  says: 
"  The  personal  domicil  of  the  claimant,  is  at  Emb- 
den,  where  he  resides,  and  has  a  house  of  trade. 
He  is  only  connected  with  this  country  by  his  part- 
nership in  a  house  here,  which  is  to  be  taken  in  a 
manner,  as  collateral  and  secondary  to  this  house  at 
Embden.  That  he  may  carry  on  trade  with  the 
enemy  at  his  house  in  Embden  cannot  be  denied, 
provided  it  does  not  originate  from  his  house  in 
London,  nor  vest  an  interest  in  that  house." 

In  another  case,  the  distinction  is  very  clearly 
drawn  between  that  trade,  as  affected  with  liability 
to  capture  and  forfeiture,  which  a  merchant  may 
carry  on  at  his  hostile,  and  that  which  he  may  car- 
ry on  at  his  neutral  establishment. 

In  this  case,^  the  claimant  resided  in  a  neutral 
country,  l)ut  had  two  commercial  establishments, 
one  in  a  neutral  country,  and  the  other  at  Ostend, 
in  a  hostile  country. 

In  disposing  of  this  case,  in  which  there  were 
nine  other  ships  involved,  besides  the  Poriland^ 
Lord  Stowell  observes:  "As  to  the  cii^cumstance 
of  his  being  engaged  in  trading  with  Ostend,  I 
think  it  will  be  difficult  to  extend  the  consequences 
of  that  act,  whatever  they  may  be,  to  the  trade 
which  he  was  carrying  on  at  Hamburgh,  and  hav- 
ing no  connection  with  Ostend,  because,  caU  it  what 
you  please,  a  colorable  character  as  to  the  trade 
carried  on  at  Ostend,  I  cannot  think  it  will  give 


The  Herman,  4  Rob.,  228.         ""  The  Portland,  3  Rob.,  41. 
9 


130  WHAT    CONSTITUTES    A   HOSTILE    CHAEACTEE. 

such  a  color  to  his  other  commerce,  as  to  make  that 
Ka])le  for  the  frauds  of  his  Ostend  trade.  As  far 
as  the  person  is  concerned,  there  is  a  neutral  resi- 
dence. As  far  as  the  commerce  is  concerned,  the 
nature  of  the  transaction  and  destination  are  per- 
fectly neutral,  unless  it  can  he  said,  that  trading  in 
an  enemy's  commerce,  makes  a  man,  as  to  all  his 
concerns,  an  enemy — or,  that  being  engaged  in  a 
house  of  trade  in  the  enemy's  country,  would  give 
a  general  character  to  all  his  transactions.  I  do 
not  see  how  the  consequences  of  Mr.  Ostermeyer's 
trading;  to  Ostend  can  affect  his  commerce  in  other 
parts  of  the  world.  I  know  of  no  case,  nor  of  any 
principle,  that  would  support  such  a  position  as 
this — that  a  man,  having  a  house  of  trade  in  an 
enemy's  country,  as  well  as  in  a  neutral  country, 
should  be  considered  in  his  whole  concerns  as  an 
enemy's  merchant,  as  well  in  those  which  respected 
solely  his  neutral  house,  as  in  those  which  belonged 
to  Jiis  belligerent  domicil." 

Residonce  of  Xlie  national  character  of  a  ship  is,  in  general, 
mining  nation-  (Ivtermincd  by  the  residence  of  her  owner.     There 

al  character  of  ^  t  •  ,  j.     i        "li     xi 

a  ship  as  gen-  ^^^^J,  howcver,  be  circumstauces  connected  with  the 

erai  rule.        particular  or  special  conduct  of  the  ship  which  as  ill 

vary  the  presumption  of  character  arising  from  i-esi- 

dence.  » 

Ship  consider-      If  a,  ship,  of  whatever  nation  as  to  her  owner's 

ed  of  the  na-  .  .  •        ,  •  ,  i  t  /i 

tion  whose  resicleuce,  IS  navigatmg  the  seas  under  a  pass  oi  a 
sh?  bearsi^^as  foreign  iiatioii,  she  is  regarded  to  all  intents,  so 
to  habuity  to  f^p  .^g  liability  to  capture  is  concerned,  as  a  ship  of 

capture.  .  7  j. 

that  nation. 
Sometimes  the      Upou  the  Same  principle,  if  a  ship  be  purchased 

national   char-  ,  ii"j_i  1  n   ,i  -i» 

acter  of  vessel  by  a  ueutrai  m  the  country  oi  the  enemy,  and  is 


WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEK.  131 

employed  subsequently  and  habitually  in  the  trade  j^  determined 

-•■       "^  ^  "^        .  •11  .  by  its  employ- 

oi  that  country,  commencing  with  the  war,  contmu-  ment. 
ing  during  the  Avar,  and  on  account  of  the  war,  she 
is  to  be  deemed,  notwithstanding  a  honajide  change 
of  ownership),  a  ship  of  the  country  where  she  is 
thus  employed. 

In  pronouncing  judgment  of  condemnation  in  the 
case  of  T/ie  VigilaMia^  before  cited,^  Lord  Stowell 
says  :  "  Here  is  a  Dutch  built  vessel — a  Dutch  fish- 
ing vessel — that  went  from  Amsterdam  regularly 
and  habitually  to  Greenland,  and  to  return  to  Am- 
sterdam, there  to  deliver  her  cargo.  She  is  pur- 
chased in  Holland.  She  is  purchased  avowedly  for 
the  purpose  of  pursuing  the  same  course  of  com- 
merce— the  fishing  trade  of  Holland.  She  is  pur- 
chased at  a  time  when  it  is  said  there  was  a  defect 
of  conveniences  for  carrying  on  this  trade  at  Embden. 
But  I  am  satisfied  it  was  the  intention  of  the  par- 
ties to  carry  on  this  trade  to  and  from  Amster- 
dam, Now,  I  ask,  upon  what  ground  is  it  that  this 
vessel,  so  purchased,  and  so  emj)loyed,  is  to  be  con- 
sidered merely  as  a  Prussian  vessel  ?  Here  is  a 
ship  as  thoroughly  engaged  and  incorporated  in 
Dutch  commerce  as  a  ship  possibly  can  be.  She  is 
fitted  out  uniformly  fi'om  Amsterdam.  She  is  fitted 
out  with  Dutch  manufacture.  She  is  fitted  out  for 
Dutch  importation,  in  all  respects  employing  and 
feeding  the  industry  of  tliat  country.  She  is  man- 
aged by  a  Dutch  ship's  husband,  and  finding  occu- 
pation for  the  commercial  knowledge  and  industry 
of  the  subjects  of  that  country.  She  is  commanded 
by  a  Dutch  captain;  she  is  manned  by  a  Dutch 

1  Rob.  1. 


182  WHAT    CONSTITUTES    A    HOSTILE    CHARACTEE. 

crew,  and  brings  back  tlie  produce  of  Ler  voyage 
for  Dutcli  consumption  and  Dutcli  revenue.  If  to 
this  you  add  that  the  vessel  is  transferred  by  the 
Dutch,  because  they  themselves  are  unable  to  carry 
on  the  trade  avowedly  in  their  own  persons,  it  is 
truly  a  Dutch  commerce  in  a  very  eminent  degree, 
not  only  in  its  essence,  but  for  the  very  hostile  pur- 
pose of  rescuing  and  protecting  the  Dutch  fi'om  the 
naval  superiority  of  their  British  enemy. 

"  There  had  been  a  determination  last  war,  in  the 
case  of  two  persons,  one  resident  at  St.  Eustatius, 
and  the  other  in  Denmark,  who  were  partners  in  a 
house  of  trade  at  St.  Eustatius.  The  one  who 
resided  there,  forwarded  the  cargoes  to  Europe ;  the 
other  received  them  at  Amsterdam,  disposed  of  them 
there,  and  then  returned  to  Denmark.  It  was . 
decided,  in  that  case,  that  the  share  of  the  person 
resident  in  St.  Eustatius  was  liable  to  condemnation 
as  the  property  of  a  domiciled  Dutchman,  and  that 
the  share  of  the  other  partner  should  be  restored  as 
the  property  of  a  neutral.  (The  Jacobus  Johannes. 
.  House  of  Lords,  Feb.  10,  1785.) 

"  There  was  also  a  case  in  this  war  of  some  persons 
who  migrated  from  Nantucket  to  France,  and  there 
carried  on  a  fishery  very  beneficial  to  the  French. 
In  that  case,  the  property  of  a  partner  domiciled  in 
France  was  condemned,  whilst  the  property  of 
another  partner,  resident  in  America,  w^as  restored. 
From  these  two  cases  a  notion  had  been  adopted, 
that  the  domicil  of  the  parties  was  that  alone  to 
which  the  court  had  a  right  to  resort ;  Ixit  the  case 
of  Coopman,  House  of  Lords,  April  9,  1798,  was 
lately  decided  on  very  different  principles.  It  was 
there  said  by  the  Lords  that  the  former  cases  were 


WHAT   CONSTITUTES   A    HOSTILE   CHAEACTER.  133 

cases  merely  at  the  commencement  of  a  war ;  tliat 
in  the  case  of  a  person  carrying  on  trade  habitually 
in  the  country  of  the  enemy,  though  not  resident 
there,  Jie  should  have  time  to  withdraw  himself  from 
that  commerce,  and  that  it  would  press  too  heavily 
on  neutrals  to  say  that,  immediately  on  the  first 
breaking  out  of  a  war,  theii'  goods  should  become 
subject  to  confiscation ;  but  it  was  then  expressly  laid 
down,  that  if  a  person  entered  into  a  house  of  trade, 
in  the  enemy's  country,  in  time  of  war,  or  continued 
that  connection  during  the  war,  he  should  not  protect 
himself  by  mere  residence  in  a  neutral  country. 

"  That  decision  instructs  me  in  this  doctrine — a 
doctrine  supported  by  strong  principles  of  equity 
and  propriety — that  there  is  a  traffic  which  stamps 
a  national  character  on  the  individual,  independent 
of  that  character  which  mere  personal  residence  may 
give  him." 

There  is  still  another  mode  in  which  a  hostile  Hostile  char- 
acter impress- 
character  may  be  imparted  to  the  person,  so  as  to  ed  by  engage- 
subject  his  property  to  capture,  and  that  is,  by  amerce  orru- 
commerce  of  that  peculiar  character  as  may  be  re-  ^  theTd've'rse 
garded  to  be  confined  to  the  subjects  of  the  adverse  beuigereut. 
belligerents  themselves. 

The  case  illustrating  this  point,  is  The  Princessa^ 
The  facts  in  this  case  are  stated  by  the  learned  judge 
in  his  decision.  Lord  Stowell  says:  "This  is  a 
Spanish  frigate,  employed  as  a  packet  of  the  king 
of  Sj^ain,  to  bring  bullion  and  specie  fr^om  South 
America  to  old  Spain ;  and  I  think  the  presump- 
tion is  most  strong,  that  none  but  Spanish  sub- 

'  2  Rob.,  49. 


134:  WHAT    CONSTITUTES    A   HOSTILE   CHAEACTEE. 

jects  are  entitled  to  the  privilege  of  having  money 
brought  from  that  colony  to  Spain.  I  have  looked 
carefully  through  the  manifest,  and  I  perceive  there 
is  not  one  shipment  but  in  the  name  of  Spaniards, 
Therefore,  it  appears  that  this  is  not  an  ordinary 
trade ;  and  I  must  take  this  to  be  property  which 
must  have  been  considered  as  Spanish,  and  which ' 
could  not  have  been  exported  in  any  other  char- 
acter. 

"It  has  been  decided  by  the  Lords,  in  several 
cases,  that  the  property  of  British  merchants,  even 
shi^^ped  before  the  war,  yet,  if  in  a  Spanish  charac- 
ter, and  in  a  trade  so  exclusively  peculiar  to  S]3an- 
ish  sul)jects,  as  that  no  foreign  name  could  aj^pear 
in  it,  must  take  the  consequences  of  that  character, 
and  be  considered  as  Spanish  property." 
EspeciaUy  One  who  is  specially  authorized  by  the  govern- 

thority^of  ad-  ^^^^  o^  the  enemy  to  engage,  and,  pursuant  to 
govern-  ^^q]^  authority,  does  engage  in  commercial  transac- 
tions which  are,  as  a  general  thing,  confined  to  the 
citizens  or  subjects  of  the  enemy,  must  of  necessity 
be  regarded  as  an  enemy,  is  fully  established  in  the 
case  of  the  Anna  Catlierina^  which  has  been  al- 
ready cited  in  another  connection.  Upon  this  par- 
ticular subject,  in  that  case,  the  learned  judge  sa}  s : 
"  It  is  by  nothing  peculiar  in  his  own  character, 
that  the  original  contractor  would  be  liable  toi  be 
considered  as  a  Spanish  merchant,  but  merely  by 
the  acceptance  of  this  contract,  and  by  acting  upon 
it.  If  other  persons  take  their  share,  and  accept 
those  benefits,,  they  take  their  share  also  in  the  le- 
gal effects.  They  accepted  his  privileges;  they 
adopted  his  resident  agent.  It  would  l)e  mon- 
strous to  say  that  the  effect"  of  the  original  contract 


verse 
meat. 


WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEE.  135 

is  to  give  the  Spanisli  character  to  the  contracting 
person,  but  that  he  may  dole  it  out  to  a  hundred 
other  persons,  who,  in  their  respective  portions,  arc 
to  have  the  benefit,  but  are  not  liable  to  the  efi:ect 
of  any  such  imputations.  The  consequence  would 
be,  that  such  a  contract  would  be  protected  in  the 
only  mode  in  which  it  could  be  carried  into  effect ; 
for  a  contract  of  such  extent  must  be  distributed, 
and  if  every  subordinate  person  is  protected,  then 
here  is  a  contract  which  concludes  the  orio:inal  un- 
dertaker  of  the  whole,  but  in  no  degree  affects  one 
of  those  persons  who  cany  that  w^hole  into  execu- 
tion. On  these  grounds,  I  am  of  opinion  that  these 
goods  are  liable  to  be  considered  as  the  property 
of  the  Spanish  government :  and  fuii;her,  that  these 
parties  are  liable  to  be  considered  as  clothed  in 
this  transaction,  with  the  character  of  Spanish  mer- 
chants." 

There  is  another  principle  which  has  become  character  of 
established  by  the  authorities  of  the  courts,  by  the  vessel. 
which  a  hostile  character  is  impressed  upon  proj)- 
erty,  by  virtue  of  the  character  of  its  employment, 
irrespective  of  the  actual  or  even  the  implied  or 
constructive  domicil  of  the  owner.  It  refers  to 
ships  or  vessels  which  navigate  the  ocean  under 
the  flag,  or  the  pass,  or  protection  of  the  enemy. 

The  case  which  illustrates  this  principle  most 
directly,  is  that  of  Tlie  Elizabetli^  in  which  Lord 
Stowell  says :  "  By  the  established  rules  of  law,  it 
has  been  decided  that  a  vessel  sailing  under  the 
colors  and  pass  of  a  nation,  is  to  be  considered 

'  The  Elizabeth,  S-^ob.,  2. 


136  WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEE. 

clothed  with  the  national  character  of  that  coun- 
try. With  goods  it  may  be  otherwise ;  but  ships 
have  a  peculiar  character  impressed  upon  them  by 
the  special  nature  of  their  documents,  and  have  al- 
ways been  held  to  the  character  with  which  they 
are  so  invested,  to  the  exclusion  of  any  claims  of 
interest  that  persons  living  in  neutral  countries 
may  actually  have  in  them.  In  the  war  before  the 
last,  this  principle  was  strongly  recognized  in  the 
case  of  a  ship  taken  on  a  vo}  age  from  Surinam 
to  Amsterdam,  and  documented  as  a  Dutch  ship. 
Claims  were  given  for  specific  shares  on  behalf  of 
persons  residing  in  Switzerland,  and  one  claim  was 
on  behalf  of  a  lady  to  whom  a  share  had  devolved 
by  inheritance,  whether  during  hostilities  or  no,  I 
do  not  accurately  remember ;  but  if  it  was  so,  she 
had  done  no  act  whatever  with  regard  to  that  prop- 
erty, and  it  might  be  said  to  have  di'opped  by  mere 
accident  into  her  lap.  In  that  case,  however,  it 
'  was  held  that  the  fact  of  sailing  under  the  Dutch 
flag  and  pass,  was  decisive  against  the  admission  of 
any  claim ;  and  it  was  observed  that  as  the  vessel 
had  1jeen  enjoying  the  privileges  of  a  Dutch  char- 
acter, the  parties  could  not  expect  to  reap  the  ad- 
vantages of  such  an  employment,  without  being- 
subject  at  the  same  time  to  the  inconveniences  at- 
taching to  it."  » 

To  this  case  of  Tlie  Eldzabetli^  the  reporter,  Dr. 
Robinson,  has  appended  a  note,  embracing  a  report 
of  the  case  of  the  "  Vreede  SclioUys^''  in  which  the 
distinction  intimated  by  the  learned  judge  in  the 
case  of  The  Elizabetli^  as  to  hostility  of  character, 
between  ships  and  their  cargoes,  is  clearly  set  forth 
as  follows :  "  A  great  distinction  has  always  been 


WHAT   CONSTITUTES   A   HOSTILE   CHAEACTER.  137 

made  by  tlie  nations  of  Europe  between  sliips  and 
goods.  Some  countries  have  gone  so  far  as  to  make 
the  flag  and  pass  of  the  ship  conclusive  on  the  cargo 
also ;  but  this  country  has  never  carried  the  princi- 
ple to  that  extent.  It  holds  the  ship  bound  by  the 
character  imposed  upon  it  by  the  authority  of  the 
government,  from  which  all  the  documents  issue. 
But  goods  which  have  no  such  dependence  upon 
the  authority  of  the  state  maybe  differently  consid- 
ered." 

'  The  doctrine,  that  a  ship  sailing  under  the  flag 
and  documentary  protection  of  the  enemy,  clothes 
her  with  a  hostile  character,  has  been  recognized 
and  applied  with  exceeding  strictness  by  the  fed- 
eral coui'ts  of  the  United  States.  Indeed  the  prin- 
ciple, as  established  by  these  decisions  goes  to  the 
extent  of  declaring,  that  sailing  under  the  license 
and  protection  of  the  enemy,  in  furtherance  of  his 
views  and  interests,  is,  without  reference  to  the  pur- 
pose of  the  voyage  or  its  destination,  such  an  ille- 
gality as  subjected  both  ship  and  cargo  to  seizure 
and  condemnation  as  lawful  prize  of  war. 

The  basis  of  these  decisions  is,  that  the  license  Reason  of  the 

,         ,  rule. 

granted  by  the  enemy  is  equivalent  to  a  contract 
by  the  licensee,  to  withdraw  himself  entirely  fr^om 
the  war  and   enjoy  the  repose  and  blessings  of    • 
peace. 

The  illegality  of  such  an  intercourse  for  such  a 
purpose  is  strongly  condemned,  and  it  was  held, 
that  the  moment  a  vessel  sailed  on  her  voyage  with 
an  enemy's  license  on  board,  the  offence  was  irrevo- 
cably committed  and  consummated,  and  that  the 
delictum  was  not  done  away,  even  by  the  terminal 


138 


WHAT    CONSTITUTES    A   HOSTILE    CHARACTEE. 


tion  of  the  voyage,  but  tliat  the  vessel  and  cargo 
might  be  -seized  after  arrival  in  a  port  of  the  United 
States,  and  condemned  as  lawful  j)rize.^ 


persons   or 
property. 


Transfer  in 
transitu. 


Attempts  to  Attempts  have  been  made  from  time  to  time, 
rules  which  and  the  ingenuity  of  merchants  has  been  exercised 
Sy^'of  char-  ^^  ©lude  the  application  of  the  principle  which  im- 
acter  upon  presscs  property,  whether  vessel  or  cargo,  with  a 
hostile  chai'acter,  making  it  subject  to  confiscation 
— ])y  reason  of  the  actual  or  constructive  residence 
of  the  owner,  or  of  the  peculiar  character  or  mode 
or  manner  of  its  employment. 

The  transfer  of  the  property  while  in  ti'ansit  has 
been  frequently  resorted  to,  in  the  hope  of  accom- 
plishing  the  purj^ose ;  but  the  rule  has  become  set- 
tled by  numerous  decisions,  that  property  stamped 
with  a  hostile  character  at  the  commencement  of 
the  voyage,  cannot  change  its  character  by  a  mere 
change  of  ownership  while  in  trunsitu. 

The  remarks  of  Lord  Stowell,  in  a  case  in  which 
the  transfer  was  held  to  be  valid,  because  actually 
made  by  delivery  of  bill  of  sale,  though  not  of  the 
property  itself,  prior  to  the  commencement  of  hos- 
tilities, contain  a  lucid  statement  of  the  rule :  "  The 
first  objection  that  has  been  taken  is,  that  the  trans- 
fer is  invalid,  and  cannot  be  set  up  in  a  prize  court, 
where  the  property  is  always  considered  to  remain 
in  the  same  character  in  which  it  was  shipped  till 
the  delivery.  If  that  could  be  maintained,  tliere 
would  be  an  end  to  the  question;  because  it  has 
been  admitted  that  these  wines  were  shipped  as 


'  The  Julia,  1  (lall.,  G05  ;  8  Cranch,  181  ;  The  Aurora,  ib.,  203  ; 
The  Hiram,  ib.,  444 ;   The  Ariadne,  2  Wlieat.,  100. 


WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEE.  139 

Spanisli  property,  and  tliat  Spanisli  property  has 
now  become  liable  to  condemnation.  But  I  appre- 
hend it  is  a  position  that  cannot  be  maintained  in 
that  extent.  In  the  ordinary  course  of  things,  in 
time  of  peace — for  it  is  not  denied  that  such  a  con- 
tract may  be  made  and  effectually  made  according  to 
the  usag-e  of  merchants  in  time  of  war — such  a  trans- 
fer  in  transitu  might  certainly  be  made,  Jt  has  even 
been  contended  that  a  delivery,  of  the  bill  of  lading  is 
a  transfer  of  the  property.  But  it  might  be  more 
correctly  expressed,  perhaps,  if  said  that  it  transfers 
only  the  right  of  delivery — but  that  a  transfer  of 
the  bill  of  lading,  with  a  contract  of  sale  accom- 
panying it,  may  transfer  the  property  in  the  ordi- 
nary course  of  things,  so  as  effectually  to  bind  the 
parties  and  all  others,  cannot  be  doubted.  When 
war  intervenes,  another  rule  is  set  up  in  admiralty 
which  interferes  with  the  ordinary  practice. 

"  In  a  state  of  war,  existing  or  imminent,  it  is  held 
that  the  property  shall  be  deemed  to  continue  as  it 
was  at  thti  time  of  shipment  till  the  actual  delivery. 
This  arises  out  of  the  state  of  war,  which  gives  a 
belligerent  a  right  to  stop  the  goods  of  his  enemy. 
If  such  a  rule  did  not  exist,  all  goods  shipped  in 
the  enemy's  country  would  be  protected  by  trans- 
fers which  it  would  be  impossible  to  detect.  It  is 
on  that  principle  held,  I  believe,  as  a  general  rule, 
that  property  cannot  be  converted  in  transitu,  and 
in  that  sense  I  recognize  it  as  a  rule  of  this  court. 
But  this,  as  I  have  said,  arises  out  of  a  state  of  war, 
which  creates  new  rights  in  other  parties,  and  can- 
not be  applied  to  transactions  originating,  like  this, 
in  a  time  of  peace.  The  transfer  must  therefore  be 
considered  as  not  invalid,  in  point  of  law,  at  the 


140  WHAT    CONSTITUTES    A   HOSTILE    CHARACTER. 

time  of  the  contract — and  being  made  before  tlie 
war,  it.  must  be  judged  according  to  the  ordinary 
rules  of  commerce."^ 

A  ship  sailed  from  Demerara  for  Middleburgh,  in 
Holland,  on  the  30th  of  January,  1781,  about  six 
weeks  after  the  commencement  of  hostilities  between 
Great  Britain  and  Holland.  On  the  14th  of  March 
following,  Demerara  surrendered  to  the  British 
forces.  The  ship  was  captured  at  sea  on  the  25th 
of  March. 

In  pronouncing  the  judgment  of  the  court  in  this 
case,  Lord  Stowell  says :  "  The  terms  of  capitula- 
tion were  very  favorable.  The  inhabitants  were  to 
take  the  oath  of  allegiance,  to  be  permitted  to  ex- 
port their  own  property,  and  to  be  treated,  in  all 
respects^  like  British  subjects,  till  his  majesty's  pleas- 
ure could  be  known  ;  and  although  this  was  in  the 
first  instance  only  under  the  proclamation  of  the 
captor,  still,  that  being  accepted,  it  took  complete 
effect.  These  terms  were  afterwards  confirmed  by 
the  king.  There  was,  therefore,  as  strong  a  prom- 
ise of  protection  as  could  be,  and  recognized  and 
confirmed  by  the  supreme  authority  of  the  state. 

"  Under  these  circumstances,  the  judge  of  the 
admiralty  thought  the  claim  so  strong,  that  he 
ordered  it  restored ;  and  it  was  not  Ids  opinion  alone. 
On  appeal,  however,  the  Lords  were  of  opinion 
that  property  sailing  after  declaration  of  hostilities, 
and  before  a  capitulation,  and  taken  on  the  voyage, 
was  not  protected  by  the  intermediate  capitulation. 
It  was  not  determined  on  any  ground  of  illegal 
trade,  nor  on  any  surmise  that,  when  the  owners 

'  The  Vrow  Manjaretha,  \  Kob.,  337. 


WHAT    CONSTITUTES    A    HOSTILE    CHARACTEE.  141 

became  Britisli  subjects,  the  trade  in  wbicli  tlie 
property  was  embarked  became,  ex  post  facto  ^  illegal. 
Nor  was  it  at  all  taken  into  consideration  tliat  Deme- 
rara  bad  again  become  a  Dutcli  colony  at  tbe  time 
of  adjudication.  It  was  declared  to  be  adjudged 
upon  tbe  same  principles  as  if  tbe  cause  bad  come 
on  at  tbe  time  of  tbe  capture.  It  was  not  on  any 
of  tbese  grounds,  but  simply  on  tbe  ground  of 
Dutcb  property,  tbat  condemnation  was  passed. 
The  ship  sailed' as  a  Dutcli  sldp^and  could  not  change 
her  character  in  transitu.  Tbis  was  tbe  dictum  of 
a  great  law  lord  tben  present — Lord  Camden,"^ 

Many  cases  bave  arisen  of  colorable  transfers,  made 
under  a  great  variety  of  circumstances,  sucb  as 
mitWit  well  be  expected  from  buman  ingenuity  exer- 
cised for  tbe  protection  of  vast  interests.  Tbey  are 
interesting  only  as  expositions  of  tbe  acuteness  of 
captors  in  tracking  and  developing  tbe  deceitful  and 
fraudulent  cbaracter  of  tbe  transfer,  and  tbe  inge- 
nuity and  skill  of  claimants  in  eluding  investiga- 
tion. 

A  transfer  made  by  an  enemy  to  a  neutral  during  Transfers  in 
or  in  contemplation  of  war,  is  illegal,  because  m 
fraud  of  a  vested  belligerent  rigbt. 

Any  reservation  of  interest  in  tbe  transfer,  any 
tbing  sbort  of  an  absolute  and  unconditional  sale, 
is  beld  to  pass  no  title  wbatever  to  tbe  property, 
but. tbat  it  remains  in  tbe  enemy,  subject  to  capture.^ 

So,  too,  a  reservation  of  risk  to  neutral  consignors,  Reservations 

'  '  ,^.  .  .    of  risk. 

in  order  to  protect  belligerent  consignees,  are  uni- 

'  TheNegotle  m  Zeevart,  1  Rob.,  Ill ;   The  Dankehaar  Afri- 
can, 1  Rob.,  107  ;   The  Jan  Frederick,  5  Rob.,  128. 
'   -  The  Anoydt  Gedacht,  2  Rob.,  137  ;  The  Sechs  Geschwistem, 
4  Rob.,  100. 


}4:-2  WHAT    CONSTITUTES    A   HOSTILE    CHAEACTEE. 

formly  regarded  by  courts  of  admiralty  as  fraudu- 
lent and  invalid. 

In  tlie  last  war  between  Great  Britain  and 
France,  a  cargo  was  shipped  on  board  tlie  ship  Salk/ 
GriffiiJis,  ostensibly  on  account  of  American  mer- 
chants. Upon  the  examination  on  the  capture,  the 
master  testified  to  his  belief  that  the  cargo,  upon 
being  unladen,  would  have  become  the  property  of 
the  French  government.  It  was  obvious,  therefore, 
that  a  sale  had  been  legally  completed ;  and  the 
use  of  American  names  as  consignees,  on  whose  risk 
and  account  the  shipment  was  pretended  to  be 
made,  was  solely  to  evade  the  result  of  a  capture, 
if  the  cargo  had  been  ship23ed  avowedly  as  French 
property. 

"  It  has  always  been  the  rule  of  the  prize  court," 
says  Sir  P.  Arden,  in  this  case,  "that  property, 
going  to  be  delivered  in  the  enemy's  country,  and 
under  a  contract  to  become  the  property  of  the 
•  enemy  immediately  on  arrival,  if  taken  m  traiisitu^ 
is  to  be  considered  as  enemy's  property.  When 
the  contract  is  made  in  time  of  peace,  or  without 
any  contemplation  of  war,  no  such  rule  exists.  But, 
in  a  case  like  the  present,  where  the  form  of  tlie 
contract  was  framed  directly  for  the  j)urpose  of 
obviating  the  danger  apprehended  from  approaching 
hostilities,  it  is  a  rule  which  unavoidably  must 'take 
place.  The  bill  of  lading  expresses  for  the  account 
and  risk  of  American  merchants;  but  papers  alone 
make  no  proof,  unless  supported  by  the  deposition 
of  the  master.  Instead  of  supporting  the  contents 
of  his  papers,  the  master  deposes,  Hhat  on  arrival,  the 
goods  would  become  the  property  of  the  French 
government ;'  and  all  the  concealed  papers  strongly 


WHAT    CO:!^STITUTES    A    HOSTILE    CHAEACTEE.  143 

support  liim  in  tliis  testimony.  Tlie  evidentia  rei  is 
too  strong  to  admit  of  fui'tlier  proof.  Supposing  it  to 
have  become  the  property  of  the  enemy  on  delivery, 
captui-e  is  considered  -  as  delivery;  the  captors,  by 
the  right  of  war,  stand  in  the  place  of  the  enemy, 
and  are  entitled  to  a  condemnation  of  goods  passing 
under  such  a  contract,  as  of  enemy's  property."^ 

In  the  leading  case  of  the  packet  De  Bilhoal 
which  was  that  of  a  shipment  at  the  risk  of  the 
consignor  until  delivery,  as  having  been  made  be- 
fore the  war.  Lord  Stowell  considers  the  subject 
with  his  usual  learning  and  ability.  He  says : 
"  The  statement  of  the  claim  sets  forth  that  these 
goods  have  not  been  paid  for  by  the  Spaniard. 
That  would  go  but  little  Avay;  that  alone  would 
not  do.  There  must  be  many  cases  in  which  British 
merchants  suffer  from  capture  by  our  own  cruizers, 
of  goods  shipped  for  foreign  account  before  the 
breaking  out  of  hostilities.  The  claim  goes  on  to 
state,  '  that  according  to  the  custom  of  the  trade,  • 
a  credit  of  six,  nine,  or  twelve  months  is  usually 
given,  and  that  it  is  not  the  custom  to  draw  on  the 
consignees  till  the  arrival  of  the  goods — that  the 
sea  risk,  in  peace  as  well  as  war,  is  on  the  consignor, 
that  he  insures,  and  has  no  remedy  against  the  con- 
signee for  any  accident  that  may  happen  during  the 
voyage.'  Under  these  circumstances  in  whom  does 
the  property  reside?  The  ordinary  state  of  com- 
merce is,  that  goods  ordered  and  delivered  to  the 
master,  are  considered  as  delivered  to  the  consignee, 
whose  agent  the  master  is  in  this  respect — but  that 
general  contract  of  the  law  may  be  varied  l^y  spe- 

'   The  Sally  Griffiths,  3  Rob.,  133.       ^  De  JBilboa,  2  Rob.  133. 


144  WHAT    CONSTITUTES    A   HOSTILE    CHAEACTEE. 

cial  agreement,  or  hj  a  particular  prevailing  prac- 
tice that  ^presupposes  an  agreement  among  sucli  a 
description  of  mercliants.  In  time  of  profound 
peace,  when  there  is  no  prospect  of  approaching 
^\^ar,  there  would  be  unquestionably  nothing  illegal 
in  contracting  that  the  whole  risk  should  fall  on 
the  consignor  till  the  goods  came  into  possession  of 
the  consignee.  In  time  of  peace  they  may  divide 
their  risk  as  they  please,  and  nobody  has  a  right 
to  say  they  shall  not ;  it  would,  not  be  at  all  ille- 
gal that  goods  not  shipped  in  time  of  war,  or  in 
contemplation  of  war,  should  be  at  the  risk  of  the 
shipper.  In  time  of  war,  this  cannot  be  peimitted, 
for  it  would  at  once  put  an  end  to  all  captures  at 
sea — the  risk  would,  in  all  cases,  be  laid  on  the  con- 
signor, Avhere  it  suited  the  purpose  of  protection. 
On  every  contemplation  of  war,  this  contrivance 
would  be  practised  in  all  consignments  from  neu- 
tral ports  to  the  enemy's  country,  to  the  manifest 
♦  defrauding  of  all  .rights  of  capture.  It  is  therefore 
considered  to  be  an  invalid  contract  in  time  of  war, 
or,  to  express  it  more  accurately,  it  is  a  conti'act 
which,  if  made  in  war,  has  this  effect,  that  the  cap- 
tor has  a  right  to  seize  it  and  convert  the  property 
to  his  own  use ;  for  he,  having  all  the  rights  which 
belong  to  his  enemy,  is  authorized  to  have  his 
taking  possession  considered  as  equivalent  to  an 
actual  delivery  to  his  enemy,  and  the  shipper,  who 
put  it  on  board  during  a  time  of  war,  jnust  be  pre- 
sumed to  know  the  rule,  and  to  secure  himself  in 
his  agreement  mth  the  consignee  against  the  con- 
tingency of  any  loss  to  himself  that  can  arise  from 
capture.  In  other  words,  he  is  a  mere  insurer 
against  sea-risk,  and  he  has  nothing  to  do  with  the 


WHAT   CONSTITUTES   A   HOSTILE    CHAEACTEK.  145 

case  of  captui'e,  tlie  loss  of  whicli  falls  entirely  on 
the  consignee.  If  tlie  consignee  refuses  payment 
and  throws  it  upon  the  shipper,  the  shipper  must 
be  supposed  to.  have  guarded  his  own  interest 
again&t  that  hazard,  or  he  has  acted  improvidently 
and  without  caution.  The  present  contract,  how- 
ever, is  not  of  this  sort.  It  stands  as  a  lawful 
agreement  being  made  whilst  there  was  neither 
war  nor  prospect  of  war.  The  goods  are  sent  at 
the  risk  of  the  shipper.  If  they  had  been  lost,  on 
whom  would  the  loss  have  fallen  but  upon  him  ? 
What  surer  test  of  property  can  there  be  than 
this  ?  It  is  the  true  criterion  of  property,  that  if 
you  are  the  person  on  whom  the  loss  will  fall,  you 
are  to  be  considered  as  the  proprietor.  To  make 
the  loss  fall  upon  the  shipper  in  such  cases,  would 
be  harsh  in  the  extreme.  .He  ships  his  goods  in  the 
ordinary  course  of  traffic  by  an  agreement  mutually 
understood  between  the  parties,  and  in  nowise  in- 
jurious to  the  rights  of  any  third  party.  An  event  ■ 
subsequently  haj^pens  which  he  could  in  no  degree 
provide  against.  If  he  is  to  be  the  sufferer,  he  is  a 
sufferer  without  notice,  and  without  the  means  of 
securing  himself  He  was  not  called  upon  to  know 
that  the'injustice  of  the  other  party  would  produce 
a  war  before  the  delivery  of  his  goods." 

Upon  the  general  rule  of  the  invalidity  of  trans- 
fers from  belligerents  to  neutrals  made  during  or  in 
contemplation  of  war,  as  affording  exemption  ft'om 
liability  to  confiscation  on  capture,  Chancellor  Kent 
observes : 

"  Such  agreements,  if  tliey  could  operate,  would 
go  to  cover  all  belligerent  property,  while  passing 
between  a  belligerent  and  neutral  country,  since 

10 


146  WHAT    CONSTITUTES    A   HOSTILE    CHAKACTEE. 

tlie  risk  of  capture  would  be  laid  alternately  on 
the  consignor  or  consignee,  as  tlie  neutral  factor 
should  happen  to  stand  in  the  one  or  the  other  of 
these  relations." 

And  again  the  learned  chancellor  says,  referring 
to  the  same  subject :  "  These  principles  of  the  Eng- 
lish admiralty  have  been  explicitly  recognized  and 
acted  upon  by  the  prize  courts  of  the  United  States. 
The  great  principles  of  national  law  were  held  to 
require,  that  in  ^var,  enemy's  property  should  not 
change  its  hostile  character  m  transitu^  and  that 
no  secret  liens,  uo  future  election,  no  private  con- 
tracts looking  to  futui'e  events,  should  be  able  to 
cover  private  property  while  sailing  on  the  ocean. 
Captors  disregard  all  equitable  liens  on  enemy's 
property,  and  lay  their  hands  on  the  gross  tangible 
property,  and  rely  on  the  simple  title  in  the  name 
and  possession  of  the  enemy.  If  they  were  to  open 
the  door  to  equitable  claims,  there  would  be  no  end 
to  discussion  and  imposition,  and  the  simplicity  and 
celerity  of  proceedings  in  prize  courts  would  be 
lost."^ 

'  Kent's  Com.  I.,  94  ;  The  Josephine^  4  Rob.,  25 ;  The  Tohago, 
5  Rob.,  218;  The  Mariana,  6  Rob.,  24;  The  Francis,  1  Gall., 
445;  8  Cranch,  335  ;  The  Sisters,  5  Rob.  155;  Vrow  Catherina, 
5  Rob.,  161  ;  1  Daer  on  Insurance,  478. 

[[During  the  existing  civil  war  in  the  United 
States,  there  seems  to  have  prevailed  among  the 
British  merchants  there  resident,  the  like  misappre- 
hension in  relation  to  their  rights,  which  so  fatally 
misled  American  citizens  resident  abroad  during 
the  last  war  between  Great  Britain  and  Holland. 
They  appear  to  have  supposed  themselves  entitled 
to  retain  all  the  privileges  of  British  subjects,  with- 


WHAT   CONSTITUTES   A   HOSTILE   CHARACTEE.  14Y 

out  regard  to  the  fact  of  their  residence  and  occu- 
pation in  another  country. 

As  this  misapprehension  of  American  citizens,  Recent  Ampri- 
during  the  war  between  England  and  Holland,  was  on  the  doctrine 
taught  them  to  their  cost,  by  the  decisions  of  the  "^J^^^t^^^^g^;- 
courts  of  Great  Britain  (as  we  have  seen  in  the  ^^^  residence 
cases  before  cited) ;  so  the  same  error  of  the  Brit- 
ish subjects  residing  in  the  southern  ports  of  the 
American  Union,  has  been  in  like  manner  corrected, 
by  numerous  recent  decisions  of  the  courts  of  the 
United  States. 

The  brig  Sarah  Sta/rr^  in  the  month  of  July,  The  Sarah 
1861,  three  months  after  the  proclamation  of  block- states  Court, 
ade   by   the   executive   authority   of   the    United  ^^®^''  ^^^"^ 
States,  was  ■  lying  at  Wilmington,  North  Carolina, 
one  of  the  blockaded  ports. 

She  was  then  owned  by  Messrs.  Monroe,  citizens 
of  Bhode  Island,  having  business  connections  and 
transactions  in  North  Carolina.  Through  the  agents 
and  correspondents  of  Messrs.  Monroe,  in  Charles- 
ton, South  Carolina,  a  negotiation  was  made,  by 
which  the  vessel  was  transferred  to  one  Cowlan 
Gravely,  a  merchant,  residing  and  transacting  busi- 
ness at  Charleston,  but  an  Englishman  by  birth, 
and  still  owing  allegiance  to  the  British  crown. 

This  transfer  having  been  consummated,  the  Brit- 
ish consul  at  Charleston  supplied  the  vessel  with  a 
provisional  register.  The  vessel  was  laden  with 
naval  stores,  and,  under  a  clearance  and  pass  from 
the  insurgent  authorities,  she  left  Cape  Fear  river 
on  the  3d  day  of  August,  and  shortly  after  crossing 
the  bar,  was  captured  by  the  Ignited  States  steamer 
Wabash,  and  sent  to  the  port  of  New  York  for 
adjudication. 


148  WHAT   CONSTITUTES    A   HOSTILE    CHARACTER. 

The  question  of  tlie  liability  of  tlie  vessel  to  con- 
demnation, as  impressed  with  a  hostile  character, 
by  reason  of  the  residence  of  Cowlan  Gravely  in  the 
country  of  the  enemy,  as  his  permanent  business 
domicile,  was  distinctly  raised  in  the  case,  and  the 
doctrine,  as  well  settled  both  in  the  English' and 
American  authorities,  upon  this  subject,  was  recog- 
nized and  affirmed. 

At  about  the  same  time,  the  British  consul  at 
Charleston  was  employed  in  furnishing  with  pro- 
visional registers  some  five  or  six  other  vessels, 
lying  at  the  different  blockaded  ports,  and  which 
had  been  in  like  manner  transferred  to  the  same 
'   Cowlan  Gravely. 

Several  of  them  were  captured,  and  the  British 
title,  which  had  been  resorted  to,  was  held  to  be  no 
protection   from   condemnation.      (  Vide  The  Aig- 
hurtli — MS.  Decisions   of  United    States   District 
Court  of  New  York. 
ThQ  Joseph  H.     The  Josejyli  H.  Toone^  captured  in  October,  1861, 
States  Court,   while  attempting  to  violate  the  blockade  of  New 
New  York.     Orleans,  by  the  United  States  ship  South  Ca^olina^ 
and  sent  to  New  York  for  adjudication,  was  claimed 
by  one  Aymar,  who  was  on  board  as  a  passenger  at 
the  time  of  capture.     Her  previous  owner  was  a 
citizen  of  New  Orleans ;  and  the  vessel  left  New 
Orleans  on  her  preceding  voyage,  with  Aymaa*  on 
board,  successfully  evading  the  blockade,  and  pro- 
ceeded to  Havana.     Previous  to  her  departure,  the 
New  Orleans  owner  delivered  to  the  master  a  power 
of  attorney  to  sell  the  vessel;  and,  under  this  pow- 
er, the  master  executed   a  transfer  to  Aymar,  in 
Havana.    Aymar  being,  or  claiming  to  be,  a  British 
subject,  the  British  consul  supplied  the  vessel  with 


WKAT   CONSTITUTES   A   HOSTILE   CHAEACTER.  149 

a  Britisli  register,  wliich  evidence  of  neutral  owner- 
ship was  found  on  board  at  the  time  of  capture. 

Aymar  was  examined  as  a  witness  on  the  stand- 
ing interrogatories ;  and  testified  that  he  was  a 
British  subject,  born  at  St.  Andrews,  in  tlie  British 
province  of  New  Brunswick,  and  that  he  called  St. 
Andrews  his  place  of  residence,  but  had  transacted 
husiness  in  JSfetv  Orleans  for  eight  years  past. 

There  were  many  other  grounds  upon  which  this 
vessel  and  cargo  (which  consisted  of  warlike  muni- 
tions almost  entirely)  were  clearly  subject  to  confis- 
cation as  lawful  prize,  but  the  permanent  business 
residence  of  the  claimant  of  the  vessel,  as  sworn  to 
by  himself,  was  considered  quite  conclusive,  as  im- 
pressing upon  the  property  such  hostility  of  charac- 
ter as  rendered  it  lawful  subject  of  capture  as  the 
property  of  the  enemy. 

So  also  the  recent  adjudications  in  the  United  The  Genemi 
States  District  Court  of  Pennsylvania,  in  the  case  court'  Pem.  ' 
of  the  General  Parhhill,  and  in  the  United  States 
District  Court  of  Massachusetts,  in  the  case  of  the 
Revere. 

In  this  latter  case,  the  learned  judge  says : 

"  Property  of  persons  resident  in  an  enemy's  ^^1^^  gp- 
country  is  deemed  hostile,  and  subject  to  condem- Court,  Mass. 
nation,  without  any  evidence  as  to  the  individual 
opinions  or  predilections  of  the  owner.  If  he  he 
the  sid)ject  of  a  neutral^  or  a  citizeii  of  one  of  the 
belligerent  states,  and  has  expressed  no  disloyal 
sentiments  toward  his  native  country,  still,  his  resi- 
dence in  the  enemy's  eonntry  impresses  upon  his 
property  engaged  in  commerce,  and  found  upon  the 
ocean,  a  hostile  character,  and  subjects  it  to  con- 
demnation." 


150  WHAT   CONSTITUTES    A    HOSTILE   CHAEACTEE. 

The  General        In  recognition  and  application  of  this  doctrine, 
Court,  Penii  "  the  learned  judge  of  the  United  States  Court  in 
Pennsylvania,  in  the  case  of  the  General  Parhhill, 
uses  the  following  language  : — 

"  One  of  the  purposes  of  naval  warfare  is  to  dimin- 
ish the  power  of  hostile  governments,  or  of  other 
hostile  organizations,  by  the  indiscriminate  mari- 
time capture  of  the  property  of  all  persons  residing 
in  places  within  hostile  dominion,  or  in  permanent 
or  temporary  hostile  occupation. 

"  The  capture  and  confiscation  of  such  property, 
by  destroying  or  suppressing  the  maritime  trade  of 
such  places,  diminishes  their  wealth,  and  thus 
reduces  the  power  of  their  hostile  rulers. 

"  The  liberation  of  the  property  when  captured, 
whether  the  individual  residents  who  owned  it  are 
well  or  ill  affected  in  feeling  toward  the  govern- 
ment of  the  captors,  would  restore  its  value  in 
wealth  to  the  hostile  place. 

"The  rule  of  confiscation  applies,  though  the  res- 
ident may  owe  a  duty  of  allegiance  to  the  captor's 
government,  and  may,  while  in  the  hostile  place,  have 
been  perfectly  loyal  in  his  own  feeling  and  conduct. 

"  After  the  declaration  of  war  against  England, 
in  1812,  a  citizen  of  the  United  States,  residing  in 
England,  before  any  knowledge  of  the  war,  shipped 
merchandize  for  the  United  States,  which,  halving 
been  captured  on  the  voyage,  was  condemned  as 
prize.  The  Supreme  Court  said,  '  although  he  can- 
not be  considered  an  enemy  in  the  strict  sense  of 
the  word,  yet,  he  is  deemed  such  with  reference  to 
the  seizure  of  so  much  of  his  property  concerned  in 
the  trade  of  the  enemy,  as  is  connected  with  his 
residence.' " 


WHAT    CONSTITUTES    A    HOSTILE    CHAEACTEPv.  151 

"  Those  predatory  maritime  hostilities,  wliicli  tlie 
law  of  war  sanctions,  could  not  be  prosecuted  with 
effect,  if  this  rule  were  not  applied  with  inexorable 
rigor." 

So,  too,  in  the  case  of  the  Amy  Warwick,  the  TheJi ??i?/War- 
distinguished  judge  of  the  United  States  Court  ingt^tes  court" 
Massachusetts,  takes  occasion  to  enforce  the  familiar  ^'^^^■ 
doctrine,  as  follows : 

"  What  shall  be  deemed  enemy's  property  is  a 
question  of  frequent  occurrence  in  prize  courts,  and 
on  which  certain  rules  and  principles  are  well  estab- 
lished. 

"Property  of  persons  resident  in  an  enemy's 
country  is  deemed  hostile,  and  subject  to  condem- 
nation, without  any  evidence  as  to  the  individual 
opinions  or  predilections  of  the  owner.  If  he  be 
the  subject  of  a  neutral,  or  a  citizen  of  one  of  the 
belligerent  states,  and  has  expressed  no  disloyal 
sentiments  toward  his  native  country,  still,  his 
residence  in  the  enemy's  country  impresses  upon 
his  property  engaged  in  commerce,  and  found  upon 
the  ocean,  a  hostile  character,  and  subjects  it  to  con- 
fiscation." {The  Venus,  8  Cranch,  253.  See  also 
The  Hoop,  1  Rob.,  196,  and  the  cases  there  col- 
lected.) 

Although,  from  the  numerous  adjudications  upon 
captured  vessels,  transfen^ed  by  pul)lic  enemies 
to  British  subjects  residing  in  the  enemy's  territory, 
durino"  the  existing  war,  the  error  seems  to  have 
been  C[uite  prevalent,  that  immunity  from  capture 
was,  by  such  transfer,  secured;  there,  nevertheless, 
seems  to  have  been  an  apprehension,  that  a  transfer 
gf  a  vessel  by  an  enemy  to  a  neutral,  in  a  blockaded 
port,  might  be  of  questionable  validity.    And  thus, 


152 


WHAT    CONSTITUTES    A   HOSTII.E    CHAKACTEE. 


Transfers  by 
enemies  to 
neutrals  dur- 
ing war  void, 
as  a  fraud  on 
belligerent 
rights. 


The  Mersey. 
U.  S.  Court, 
New  Tork. 


as  in  tlie  case  of  the  Toone,  the  contrivance  was  re- 
sorted to  of  executing  the  transfer  in  a  foreign  port, 
through  the  medium  of  a  procuration  executed  in 
the  blockaded  port. 

Inasmuch  as  the  transferree  in  thtit,  as  well  as  in 
most  of  the  other  cases,  was  a  domiciliated  business 
resident  of  the  country  of  the  enemy,  the  question 
of  the  validity  of  the  transfer,  as  made  in  a  block- 
aded port,  or  during  war,  by  an  enemy  to  a  neutral, 
became  of  secondary  importance. 

But  the  ingenuity  of  man  is  unequal  to  the  task 
of  rendering  valid  by  indirection,  an  act  which  the 
law  invalidates  when  done  directly. 

The  transfer  of  a  vessel  by  power  of  attorney, 
whenever  made,  is  the  act  of  the  principal,  and 
although  done  by  the  agent  in  a  foreign  port,  in 
legal  intendment,  it  is  not  less  the  act  of  the  prin- 
cipal at  his  own  domicile. 

But  subsidiary  to  all  this,  is  the  well  settled 
principle,  under  which  such  transfers  become  mere 
waste  paper;  it  is  that  principle,  well  established 
in  the  law  of  nations,  that  a  transfer  by  an  enemy 
to  a  neutral  in  time  of  war,  or  in  aid  of  a  contem- 
plated war,  is  void,  as  in  fraud  of  belligerent 
rights. 

The  undoubted  belligerent  right  of  conquering 
from  the  adversary  an  honorable  peace,  by  ii)ijict- 
ing  a  blow  upon  his  ocean  commerce,  is  directly  in- 
vaded, and  may  be  wholly  destroyed  by  the  acts  of 
neutrals,  in  becoming  possessed  of  that  commerce ; 
and  hence,  the  law  regards  such  acts  as  in  no  man- 
ner changing  the  ti'ue  ownership  of  the  property. 

The  schooner  Mer.sey  l^elonged  to  a  citizen  of 
Charleston,  South  Carolina,  and  succeeding  in  get- 


WnAT    CONSTITUTES    A    HOSTILE    CHARACTER.  153 

ting  out  of  that  port  in  violation  of  the  l:>lockade, 
in  March  1862,  went  to  the  British  port  of  Nassau, 
where,  through  a  power  of  attorney  executed  in 
Charleston,  she  was  transferred  to  a  British  subject 
residing  at  Nassau,  and  thereuj^on  clothed  with  a 
British  register.  Being  captured  on  her  next  voy- 
age, two  days  out  from  Nassau,  and  sent  to  New 
York  as  prize  of  war,  the  learned  judge  of  that  dis- 
trict, in  adjudicating  upon  the  questions  raised  in 
the  proceedings  against  her,  affirms  this  doctrine  in 
the  following  emphatic  language  : — 

"  For  aught  that  appears  before  the  court,  this 
vessel  retained  the  same  character  and  ownership 
she  bore  when  she  left  Charleston,  and  entered  the 
port  of  Nassau,  the  last  of  March,  and  at  the  time 
the  British  register  on  board  her,  was  executed  at 
Nassau.  Beyond  that  subsidiar}^  principle  is  the 
higher  doctrine,  that  a  transfer  of  property  to  a  neu- 
tral by  an  enemy  in  time  of  war,  or  in  aid  of  a  con- 
templated tvar,  is  illegal,  as  in  violation  and  in 
fraud  of  vested  belligerent  rights."  (The  Bernou^ 
1  Rob.,  86;  2  ibid.^  114,  note  a;  ^  ihid.,  396,  note 
400 ;  2  ihid.,  281 ;  The  Roscdie  and  Bettys)  (  Vide 
MS.  Decisions  in  Prize,  of  United  States  District 
Court  of  New  York.) 

The  doctrine   that   secret   liens   upon   captured  Secret  iiens 
property  are  wholly  disregarded  in  prize  courts,  by  courts^of 
and  that  confiscations  enure  to  the  benefit  of  cap-  P"^®* 
tors,  discharofed  from  all  such  incumbrances  as  are 
not  visible  at  the  time  of  capture,  has  been  affirmed 
and  enforced  by  the  Federal  courts  of  the  United 
,  States,  in  recent  adjudications. 

In  the  cases  of  the  Hiaivatha,  the  Crenshaw,  the 


154  WHAT    CONSTITUTES    A   HOSTILE    CHAEACTER. 

Lyncliburg^  and  otliers,  many  of  tlie  claimants  of 
the  captured  property  were  persons  wlio  had  made 
advances  upon  portions  of  merchandize  shipped  on 
hoard  the  vessels  captured,  and  claimed  a  lien  upon 
the  property,  by  express  agreement,  as  security  for 
the  advances. 

Such  claims  were  held  to  be  inadmissible,  except 
in  the  instance  where  the  bills  of  lading  were  in- 
dorsed to  the  person  making  the  advance,  giving 
to  him  the  actual  right  of  possession  of  the  prop- 
erty, leaving  to  the  shipper  only  a  claim  to  the  sur- 
plus of  proceeds  after  payment  of  advances. 

In  the  case  of  the  Delta ^  adjudicated  in  the  New 
York  Federal  court,  citizens  of  Massachusetts 
claimed  a  lien  upon  the  captured  vessel  to  the 
amount  of  £1,900,  by  virtue  of  a  mortgage  upon 
the  vessel  to  that  amount,  executed  in  London,  by 
the  holder  of  the  legal  title,  and  assigned  to  them. 

The  claim  was  rejected  by  the  eminent  judge, 
who,  in  passing  upon  the  question,  say5 : 

"  Preliminary  to  the  question  of  prize  or  no 
prize,  to  be  determined  upon  the  proofs,  is  one  in 
relation  to  the  character  of  the  claim  of  Isaac  and 
Setli  Adams,  and  their  right  to  assert  the  same,  as 
against  the  captors." 

"Although  the  conclusions  to  which  the  court  lias 
arrived,  upon  the  main  question,  cannot  be  affe9ted 
by  the  determination  of  that  of  a  mortgagee  of  cap- 
tured property  to  assert  his  mortgage  in  a  prize 
court,  and  demand  that  it  be  paid  out  of  the  pro- 
ceeds of  the  property,  if  condemned,  it  is  neverthe- 
less proper  to  consider  that  question," 

"  Charles  W.  Adams  being  the  sole  owner  of  the 
brig,  executed  a  bill  of  sale  to  the  claimant,  Marsh, 


WHAT   CONSTITUTES    A   HOSTILE    CHAEACTEE.  155 

in  Liverpool,  and  took  back  from  Mm  a  mortgage 
to  secure  the  purckase-money,  for  £1,900  sterling." 

"  Isaac  and  Setk  Adams,  claim  solely  as  tke  hold- 
ers and  owners  of  tkis  mortgage." 

"  Now  tkere  is,  perhaps,  no  doctrine  better  set- 
tled in  the  law  of  maritime  capture,  than  this — 
that  all  liens  upon  captured  property,  which  are 
not,  in  their  very  nature,  open  and  visible  (like 
that  for  freight  for  enemy  cargo  laden  on  board 
a  neutral  vessel)  are  disregarded  by  prize  courts. 

"The  great  principles  of  international  law  re- 
quire that  no  secret  liens,  no  mortgages,  no  bottom- 
ry bonds,  no  claims  for  repairs,  supplies,  or  ad- 
vances, should  be  allowed  to  cover  and  protect 
private  property  while  sailing  on  the  ocean.  If 
the  door  were  once  opened  for  the  admission  of 
equitable  claims  and  liens,  there  would  l)e  no  end 
to  discussion  and  imposition,  and  the  simplicity  and 
celerity  of  prize  proceedings  would  be  alike  sacri- 
ficed. {The  Francis^  1  Gall.,  445  ;  The  Josephine, 
4  Eob.,  25;  The  Tobago,  5  Eob.,  218;  The  Mari- 
ana, 6  Eob.,  24;  The  Sisters,  5  Eob.,  161.) 

"  The  claim,  therefore,  of  the  brothers,  Isaac  and 
Seth  Adams,  is  one  that  cannot  be  regarded  in  this 
court." 

In  the  case  of  the  Areola,  adjudicated  in  the  Dis-  The  Areola. 
trict  Court  of  the  United  States  in  Maryland,  tlie  crstrTct  Court, 
learned  judge,  while  recognizing  the  correctness  of  ^fai-yiand. 
the  doctrine,  allows  the  claim  of  the  mortgagee  of 
the  vessel,  solely  because  his  lien  was  visible. 

In  reviewing  the  cases  in  which  liens  upon  cap- 
tured property  have  been  disallowed,  the  learned 
judge  says: 

"  Now  these  were  all  secret  liens,  of  Avhich  the 


156  WHAT   CONSTITUTES    A   HOSTILE   CHAEACTEE. 

captors  could  learn  notliiug  when  they  made  the 
captui-e,  and  depending  for  their  existence  upon  the 
different  laws  of  different  countries.     The  difficul- 
ties which  the  examination  of  such  claims  would 
impose   upon   the  prize   courts  in  deciding   upon 
them,  have  excluded  such  claims  from  their  consid- 
eration.    But  do  these  considerations  apply  to  the 
case  of  a  mortgage,  regularly  recorded  under  the 
act  of  Congress  of  July  29th,  1850,  and  indorsed  on 
the  certificate  of  enrolment?     Our  act  of  Congress 
does  not   require   the  mortgage   or   memorandum 
'     thereof,  to  be  indorsed  on  the  vessel's  register  or 
enrolment,   as  the  statute  of  6  Geo.  IV.,  ch.   20, 
and  subsequent  British  statutes  do.     But  it  was 
done  in  this  case,  and  it  is  a  practice  that  should  be 
followed  in  similar  cases.     It  notifies  the  captors, 
immediately  on  inspection  of  the  ship's  papers,  that 
there  is  an  interest  in  the  vessel,  vested  in  parties 
fi'iendly  to  the  government,  and  puts  them  to  their 
election  whether,  under  such  circumstances,  they 
will  proceed  in  the  capture." 

Upon  this  ground  the  claim  was  allowed,  upon 

terms,  as  to  costs. 

The  Amy  War-     In  the  case  of  the  Amy  Warivich,  on  the  claim  of 

':;^tkn'f  Mm  Z.   Phipps,  c&  Co.,    decided  in   the   United 

FMpps&co.  g^^^^gg  District  Court  for  the  District  of  Massachu- 

U.  S.  Court,  -,    .     -,  .  1     •  .  1        1 

Mass.  setts,  the  learned  judge,   m    applymg  the  law  m 

relation  to  liens  upon  captured  property,  takes 
occasion  to  declare  the  distinction  between  such 
liens  as  may  be  upheld  in  a  court  of  prize,  and  such 
as  cannot  be  protected,  which  seems  to  cover  the 
whole  ground. 

He  says :  "  The  counsel  for  the  captors  contend 
that  the  claimants  had  only  a  lien  on  this  cargo. 


WHAT    CONSTITUTES    A   HOSTILE    CHAEACTER.  15  Y 

and  tliat  liens  will  not  be  protected  or  regarded  in 
a  prize  cornet.  This  position  is  sustained  by  the 
authorities  as  to  certain  kinds  of  liens.  The  extent 
of  this  doctrine  and  the  reasons  on  which  it  is 
founded,  are  stated  by  the  Supreme  Court,  in  The 
Francis^  8  Cranch,  418.  It  is  there  said  that  'cases 
of  liens  created  by  the  mere  private  contract  of  in- 
dividuals, depending  upon  the  different  laws  of 
different  countries,  are  not  allowed,  because  of  the 
difficulties  which  would  arise  in  deciding  ujDon 
them,  and  the  door  which  would  be  open  to  fraud.' 
Similar  reasons  are  given  by  Lord  Stowell,  in  The 
Marianna,  6  Eob.,  '25,  26,  and  in  several  other 
cases.  These  reasons  are  especially  applicable  to 
latent  liens  created  under  local  laws.  They  do  not 
reach  the  case  now  before  the  court.  This  coffee 
was  purchased  by  the  claimants  at  Rio,  and  shij)ped 
by  them  on  board  this  brig  under  a  bill  of  lading, 
by  which  the  master  was  bound  to  deliver  it  to 
their  order,  and  they  ordered  it  to  be  delivered  to 
J.  L.  Phipps  &  Co.,  that  is,  to  themselves.  They 
then  retained  the  legal  title,  and  the  possession  of 
the  master  was  their  possession.  Being  the  legal 
owners  of  the  property,  they  can  hardly  be  said  to 
have  alien  upon  it;  a  lien  being  in  strictness  an 
incumbrance  on  the  property  of  another.  Their 
real  character  was  that  of  trustees  holding  the  legal 
title  and  possession  with  a  right  of  retention  until 
their  advances  should  be  paid. 

"  In  The  Francis  and  many  other  cases  it  is  held 
that  the  lien  of  a  neutral  carrier  for  the  freight  of 
enemy's  goods,  is  upon  capture  to  be  allowed.  The 
general  doctrine  seems  to  be  that  where  a  neutral 
has  a  jus  in  re;  where  he  is  in  possession  with  a 


158  WHAT   CONSTITUTES   A   HOSTILE   CHAEACTEE. 

riglit  of  retention  until  a  certain  amount  is  paid  to 
liim,  tlie  captor  takes  Guni  onere  and  must  allow 
tlie  amount  of  such  riglit.  But  wliere  the  neutral 
has  merely  a  jus  ad  rem,  which  he  cannot  enforce 
without  the  aid  of  a  court  of  justice,  his  claim  will 
not  be  recognized  by  a  prize  court.  (^Tlie  Tobago, 
6  Kob.,  218.)" 


ge]o:eal  eight  to  capture  enemy's  property.  159 


CHAPTER  ly. 

Of  the  Rights  of  Belligerents  to  Interfere  with 
EACH  other's  Commerce,  and  Capture  each 
other's  Property — and  herein  of  Embargo — 
OF  Letters  of  Marque  and  Reprisal — of  Cap- 
ture AND  Joint-Capture  and  Recapture — of 
Postliminium  and  Military  Salvage. 

A  remark  attributed  to  tlie  king's  advocate  in 
the  early  case  of  Potts  vs.  Bell^  that  "  there  is  no 
such  thing  as  a  war  for  arms  and  a  peace  for  com- 
mcT-ce,"  has  since  been  adopted  by  the  elementary 
writers,  us  a  happy  statement  of  an  axiom  in  the 
law  of  nations. 

The  commerce  of  the  enemy  has,  in  all  ages,  been  The  com-    i 

-IT  ill', -J  •  ^  merce  of  the 

regarded  as  the  legitimate  prize  oi  war.  enemy  the  le- 

The  character  and  effects  of  what  are  considered  of  war.^  ^"^^ 
the  several  rights  of  war  relative  to  hostile  com- 
merce, will  form  the  subject  of  this  chapter. 

As  a  starting  point,  it  will  be  instructive  to  con- 
sider the  great  leading  principles,  as  they  have  been  Leading  prfn- 
laid  down  by  the  early  authoritative  writers,  as  subject  in  na- 
forming  the  basis  of  the  existing  law  of  nations.       '^^^'^^  ^^' 

"  A  state,  taking  up  arms,"  says  Grotius,^  "  in  a 
just  cause,  has  a  double  right  against  her  enemy — 
first,  a  right  to  obtain  possession  of  her  property 
withheld  by  the  enemy,  to  which  must  be  added 
the  expenses  incurred  in  the  pursuit  of  that  object 
— the  charges  of  war  and  the  reparation  of  damages 
— for,  were  she  obliged  to  bear  those  expenses  and 

'  8  Term  Rep.,  548.  *  Grotius,  B.  IIL,  c.  vi. 


160  GENEEAL    EIGHT   TO    CAPTURE   ENEMy's   PEOPEETY. 

losses,  she  would  not  fally  recover  lier  property  nor 
obtain  her  due.  Secondly,  slie  has  a  right  to  weak- 
en her  enemy,  in  order  to  render  him  incapable  of 
supporting  his  unjust  violence,  a  right  to  deprive 
him  of  the  means  of  resistance. 

"  Hence,  as  from  this  source  originate  all  the  rights 
which  war  gives  us  over  things  belonging  to  the 
enemy,  we  have  a  right  to  deprive  him  of  his  pos- 
sessions— of  every  thing  which  may  augment  his 
strength  and  enable  him  to  make  war.  This,  every 
one  endeavors  to  accomplish  in  the  manner  most 
suitable  to  him.  Whenever  we  have  an  opportu- 
nity, we  seize  on  the  enemy's  property,  and  convert 
it  to  our  own  use,  and  thus,  besides  diminishing 
the  enemy's  power,  we  augment  our  own,  and  ob- 
tain at  least  a  partial  indemnification  or  equivalent 
either  for  what  constitutes  the  subject  of  the  war, 
or  for  the  expenses  and  losses  incurred  in  its  prose- 
.   cution — in  a  word,  we  do  ourselves  justice." 

Professor  Martens,  of  Gottingen,  in  his  "Sum- 
mary of  the  Law  of  Nations,"^  makes  the  following 
condensation  of  the  elementary  doctrines:  "The 
conqueror  has  a  right  to  seize  on  the  property 
of  the  enemy,  whether  movable  or  immovable. 
These  seizures  may  be  made ;  1st,  in  order  to  ob- 
tain what  he  demands  as  his  due  or  equivalent ; 
2d,  to  defray  the  expenses  of  the  war ;  3d,  to  force 
the  enemy  to  an  equitable  p^ace ;  4th,  to  deter 
him,  or  by  reducing  his  strength,  to  hinder  him, 
from  repeating,  in  future,  the  injuries  which  have 
been  the  cause  of  the  war.  And,  with  this  last 
object  in  view,  a  power  at  war  has  a  right  to  de- 

'  Marten's  Lib.  VIII.,  c.  iii.,  8  9. 


GETTEBAL    EIGHT    TO    CAPTUEE    EXEMy's    PEOPEETY.  161 

stroy  the  possessions  and  property  of  the  enemy, 
for  the  express  purpose  of  doing  him  mischief. 
However,  the  modern  laws  of  war  do  not  permit 
the  destruction  of  any  thing,  except,  1st,  such 
things  as  the  enemy  cannot  be  deprived  of  by  any 
other  means  than  those  of  destruction,  and  which 
it  is  at  the  same  time  necessary  to  deprive  him  of ; 
2d,  such  things  as,  after  being  taken,  cannot  be 
kept,  and  which  might,  if  not  destroyed,  strengthen 
the  enemy;  3d,  such  things  as  cannot  be  pre- 
served without  injuiy  to  the  military  operations. 
To  all  these  we  may  add,  4thly,  whatever  is  de- 
stroyed by  way  of  retaliation." 

The  subject  of  the  belligerent  right  of  the  de- 
struction or  confiscation  of  the  property  of  the  en- 
emy, acquires  a  peculiar  interest  in  its  connection 
with  the  insurrection  against  the  government  of  the 
United  States,  raised  by  certain  malcontents  in  the 
southern  portion  of  the  country,  and  in  its  applica- 
tion to  the  negi'oes  held  as  slave  property  by  a  small 
portion  of  the  people  in  the  insurgent  territory. 

The  solution  of  this  question  assumes  a  moment- 
ous importance,  when  it  is  considered  in  connection 
with  the  obvious  and  imperative  duty  of  the  gov- 
ernment, in  the  suppression  of  a  rebellion,  which, 
in  any  event  must  involve  a  pecuniary  loss  of 
many  millions  to  the  people,  and  may  entail  a  loss 
of  greater  magnitude  than  the  highest  estimated 
value  of  the  entire  negro  population  held  as  slave 
property — to  remove  all  possible  ground  or  occa- 
sion for  future  domestic  commotion,  from  the  same 
real  or  pretended  cause. 

It  would  be  out  of  place,  in  a  work  of  this  char- 
11         « 


162  GENERAL    RIGHT    AS    APPLIED    TO    SLAVE   PROPERTY. 

acter,  to  enter  into  a  discussion  of  the  subject, 
eitlier  in  its  moral  aspects,  or  as  one  of  political 
expediency. 

In  its  legal  bearings,  it  has  been  recently  stated 
with  much  brevity,  but  with  great  ability  and  pre- 
cision, by  the  learned  and  distinguished  jurist  who 
so  worthily  succeeds  the  late  Mr.  Justice  Story  in 
the  Dane  professorship  of  law,  in  the  university 
at  Harvard. 

We  are  permitted  to  extract  this  statement  from 
a  lecture  lately  delivered  by  Professor  Parsons  in 
the  coui'se  of  his  professorial  duties : 

"  Many  of  you  have  asked  of  me  what  would  be 
the  law  or  the  legal  rights  which  an  army,  advanc- 
ing by  order  of  the  President  into  a  state  in  organ- 
ized rebellion,  would  carry  with  it,  as  to  the  slaves. 
I  will  endeavor  to  answer  this  question. 

"In  the  first  place,  that  army  must  have  the 
rights,  and  all  the  rights  of  war.  Because,  if  a 
state  puts  itself  into  that  position  with  reference  to 
the  United  States,  the  government  of  the  United 
States  must  necessarily  accept  that  position  while 
carrying  on  the  conflict,  although  the  general  gov- 
ernment prosecute  the  war  with  no  desire  of  sub- 
jugation, but  only  for  the  purpose  of  bringing  that 
state  back  to  its  original  position. 

"  There  are  four  ways  in  which  that  army  might 
deal  with  slaves.  One  is,  to  seize  and  use  them  in 
its  military  labors.  That  they  might  do  this,  seems 
to  me  as  certain  as  that  they  might  seize  horses  or 
oxen  to  draw  their  wagons,  or  shovels  to  dig  their 
trenches.  How  far  compensation  should  be  made 
must  depend  upon  circumstances.  It  is  a  common 
opinion  that  civilization  has  so  far  mitigated  war, 


GENERAL    EIGHT    AS    APPLIED    TO    SLAVE    PROPERTY.  163 

that  it  is  no  longer  one  of  the  laws  of  war  that  an 
invading  army  may  seize,  use,  or  destroy  private 
property.  This  is  a  mistake,  according  to  all  the 
authorities  on  the  law  of  nations.  It  is  undoubted- 
ly true,  however,  that  the  modern  usages  and  pro- 
prieties of  war — and  there  are  such  things — would 
justify  the  exercise  of  this  right  only  on  the  ground 
of  military  necessity. 

"  The  second  way,  is  to  receive  and  harbor  all  run- 
away slaves.  And  the  third  is  but  a  step  further 
in  the  same  direction,  although  it  may  seem  to  be 
a  wide  step :  it  is  to  liberate  them,  not,  as  it  were, 
passively,  but  by  proclamation,  or  other  active 
measures.  As  a  matter  of  law,  I  have  not  the  least 
doubt  of  the  right  of  an  invading  army  to  do  this.^ 
It  would,  regarded  as  a  mere  question  of  law,  stand 
on  the  footing  of  a  destruction  of  private  property 
in  an  enemy's  country ;  and  like  that,  it  would  be 
^an  unquestionable  right ;  but  if  the  usages  of  war 
were  to  govern  it,  it  would  be  a  right  to  be  exer- 
cised only  as  a  military  necessity,  and  for  the  pur- 
pose of  weakening  the  enemy,  and  lessening  his 
means  of  attack  or  resistance.  And  the  existence 
of  this  necessity  must  be  determined  by  the  com- 
manding officer,  or  by  the  supreme  authority  at 
home,  in  view  of  all  the  circumstances  of  the  case. 
Should  there  be  a  war  between  two  slave  states, 
say  Georgia  and  South  Carolina,  and  Georgia  should 
invade  South  Carolina,  I  have  no  doubt  that  the  in- 
vading forces  might  and  would  claim  and  possess 
the  right  to  exercise  these  means  of  weakening 
their  enemy,  if  they  thought  proper.  . 
•  "  The  fourth  way  of  dealing  with  slaves  would 
be  to  put  weapons  into  their  hands  and  incite  them 

*  Vide  Appendix,  No.  ix. 


164  EMBAEGO. 

to  armed  insurrection.  If  any  sucli  right  as  this 
can  ever  exist,  it  can  only  spring  from  the  extremest 
necessity,  and  from  a  condition  of  things  which  it 
would  be  difficult  and  painful  to  imagine.  With 
my  understanding  of  what  an  armed  servile  insur- 
rection must  be,  I  may  illustrate  my  view  of  tlie 
law  thus :  an  army  which  invested  a  city  that  was 
supplied  with  water  by  a  stream  flowing  into  it, 
would  have  a  military  right  to  cut  off  the  stream 
and  so  reduce  the  city  to  submission.  But  it  would 
have  no  right,  military  or  other,  to  poison  the  waters. 
There  seems  to  me,  as  matter  of  law,  a  good  test 
for  this.  The  commander  of  an  invading  army 
might  certainly,  as  a  military  necessity,  liberate 
the  slaves  and  make  any  use  of  them  which  he 
could  make  of  his  own  soldiers,  but  nothing  more. 
"  Questions  of  a  moral  nature,  and  others  of  ex- 
pediency, gather  around  this  topic  of  the  treatment 
of  slaves  by  an  invading  force.  I  have  avoided  all 
reference  to  them,  not  because  I  am  insensible  to 
their  existence  or  force.  But  it  is  my  business  here 
to  speak  to  you,  as  well  as  I  can,  of  the  law^,  and  I 
believe  I  can  speak  of  it  more  accurately,  if  I  speak 
only  of  the  law." 

The  first  mode  which  we  shall  consider,  and  usu- 
ally the  first  in  order  of  time,  upon  the  breaking 
out  of  a  war,  in  which  a  belligerent  proceeds  to 
assail  the  commerce  of  the  enemy,  is  by  what  is 
Embargo  de-  called  an  embargo — the  purpose  and  effect  of  which 
is,  to  detain  vessels  in  the  ports  where  they  may  be 
lying. 

There  are  two  kinds  of  embargoes ;  and  although 
eivAi  is  an  act  of  hostility  designed  to  weaken  the 


EMBARGO.  165 

commerce  of  the  enemy,  they  have  been  distin-  ^^^^^^  and 
giiished  by  designating  the  one  as  warlike,  as  oper- 
ating directly  upon  the  vessels  of  the  enemy ;  and 
the  other  as  civil,  as  operating  upon  those  of  the 
citizens  or  subjects  of  the  nation  proclaiming  the 
embargo. 

Vattel  says  •}  "  The  sovereign  can  neither  detain 
the  persons  nor  the  property  of  those  subjects  of 
the  enemy  who  are  found  within  his  dominions  at 
the  time  of  the  declaration;  they  came  into  his 
country  under  the  public  faith.  By  permitting 
tfiem  to  enter  and  reside  in  his  territories,  he  tacitly 
promised  them  full  liberty  and  secuiity  for  their 
return ;  he  is,  therefore,  bound  to  allow  them  a 
reasonable  time  for  withdrawing  with  their  effects, 
and  if  they  stay  beyond  the  term  prescribed,  he 
has  a  right  to  treat  them  as  enemies — as  unarmed 
enemies,  however.  But  if  they  are  detained  by 
an  insurmountable  impediment,  as  by  sickness,  he 
must  necessarily  and  for  the  same  reason,  grant 
tlieni  a  sufficient  extension  of  the  term.  At  pres- 
ent, so  far  from  being  wanting  in  this  duty,  sov- 
ereigns carry  their  attentions  to  humanity  still  fur- 
ther, so  that  foreigners  who  are  subjects  of  the 
state  against  which  war  is  declared,  are  very  fre- 
quently allowed  full  time  for  the  settlement  of 
their  affairs.  This  is  observed  in  a  particular  man- 
ner with  regard  to  merchants,  and  the  case  is,  more- 
over, carefully  provided  for  in  commercial  treaties." 

It  would,  on  first  consideration,  appear  that  the  Modtin  prac- 
rule  of  justice  and  public  faith  thus  laid  down  by  bargo. 
Vattel,  was  violated  by  the  modern  practice  of  the 

'  Lib.  III.,  c.  i.,  §  63. 


166  EMBAEGO. 

t 

imposition  of  embargoes  upon  tlie  commencement 
of  hostilities;  but  it  must  be  remembered  that 
declarations  of  war,  under  the  present  law  of  na- 
tions, are  not  merely  the  formal  notification  of  hos- 
tilities. There  are  always  preceding  acts  of  a  hos- 
tile character,  which,  to  sonie  intents,  are  deemed 
to  be  equivalent  to  formal  declarations ;  these  acts 
may  be  subsequently  satisfactorily  explained,  and 
by  a  reconciliation  be  annulled.  When  therefore, 
a  nation  receives  certain  injuries*  from  another,  for 
which  she  can  see  no  prospect  of  redress,  she  is 
forced  to  regard  such  injuries  as  tantamount  to  a 
declaration  of  hostilities,  and  therefore  proclaims 
an  embargo  upon  the  commerce  of  the  offending 
state  then  lying  within  her  ports,  in  order  to  in- 
demnify herself  in  the  only  way  in  which,  perhaps, 
it  may  be  possible  for  her  to  obtain  indemnification, 
at  all.  In  such  cases,  the  hostile  property  which 
comes  to  her  possession  after  the  commission  of 
the  injurious  acts,  may  very  justly  be  regarded  as 
having  so  come  after  the  declaration  of  hostilities, 
although  there  may  have  been  no  formal  notifica- 
tion or  declaration  of  war. 
Operation  and      Upou  this  right  of  seizurc,  under  such  an  implied 

CU6Ct    01    GDI-  ,  rtT  •i»«  -■  T  f^-i  rt 

bargo.  declaration  of  hostilities,  and   upon  the  enect  of 

such  seizure,  in  the  event  of  an  adjustment  of  diffi- 
culties, before  any  formal  declaration  is  made,  liord 
Stowell  makes  some  instructive  comments,  in  a  case 
before  him,  in  which  the  subject  was  involved.^ 

In  that  case,  an  embargo  upon  Dutch  property 
had  been  declared  by  Great  Britain,  prior  to  any 
formal  or  open  declaration  of  war  against  Holland ; 

'  The  Boedas  Lust,  5  Rob.,  246. 


EaiBARGO.  1  ( 

but  after  the  commission  of  certain  acts  of  injustice 
by  tliat  government,  as  were  regarded  equivalent, 
in  their  hostile  character,  to  a  declaration  of  war 
a^rainst  Great  Britain.  The  fonnal  declaration  of 
war,  which  was  subsequently  made,  was  held  to 
have  a  retrospective  effect,  as  rectifying  and  confirm- 
ing whatsoever  had  been  done  pui'suant  to  the 
embargo,  ordered  in  consequence  of  the  implied 
declaration. 

"  The  seizure,"  says  the  learned  judge,  "  was  at 
fii'st  equivocal ;  and  if  the  matter  in  dispute  had 
terminated  in  a  reconciliation,  the  seizure  would 
have  been  converted  into  a  mere  civil  embargo,  so 
termed. 

"  That  would  have  been  the  retroactive  effect  of 
that  coui'se  of  circumstances.  On  the  contrary, 
if  the  transactions  end  in  hostility,  the  retroactive 
effect  is  dii'ectly  the  other  way.  It  imj)resses  the 
direct  hostile  character  upon  the  original  seizure. 
It  is  declared  to  be  no  embargo.  It  is  no  longer 
an  .equivocal  act,  subject  to  two  interpretations. 
There  is  a  declaration  of  the  animus  by  which  it  is 
done ;  that  it  was  done  Tiostili  animno^  and  is  to  be 
considered  as  a  hostile  measure  ah  initio.  The 
property  taken  is  liable  to  be  used  as  the  property 
of  trespassers,  ab  initio^  and  guilty  of  injuries 
which  they  have  refused  to  redeem  by  any  alteration 
of  theii'  measures.  This  is  the  necessary  course,  if 
no  compact  intervenes  for  the  restitution  of  the 
property  taken  before  a  fonnal  declaration  of  hos- 
tilities." In  another  case,^  the  same  learned  judge 
observed :  "  Actual  hostilities  are  not  to  be  reckoned 

^  TheEerHtelder,\Y.o\i.,\\\. 


)  I 


1  68  CIVIL    EldBAKGO. 

merely  from  tlie  date  of  tlie  declaration,  but  such  dec- 
laration has  been  applied  with  a  retroactive  force." 

There  is  no  doubt  that  embargo,  as  practised  in 
modern  times,  is  sanctioned  by  the  uniform  usage 
of  nations. 

It  substantially  conforms  to  that  practised  by 
the  Syracusans  in  the  time  of  Dionysus  the  Elder 
(w^hich  Mr.  Mitford,  in  his  History  of  Greece,  con- 
siders a  gross  violation  of  the  law  of  nations),  who, 
having  declared  war  against  Carthage,  at  once 
seized  the  effects  of  Carthaginian  traders  in  their 
warehouses,  and  Carthaginian  vessels  in  their  har- 
bors, and  then  sent  a  herald  to  Carthage  to  nego- 
tiate. 

This  act  of  the  Syracusans  is  not  distinguishal:)le 
fi'om  the  ordinary  practice  of  Great  Britain,  as 
declared  by  Lord  Mansfield  •}  "  Upon  the  declara- 
tion of  war  or  hostilities,  all  the  ships  of  the  enemy 
are  detained  in  our  ports,  to  be  confiscated  as  the 
property  of  the  enemy,  if  no  reciprocal  agreement 
is  made."  * 

CivU  embar-       The  Consideration  of  the  subject  of  civil  embar- 
^^'  g^6s,  as  they  are  called,  would  be  apart  from  the 

purpose  of  this  treatise.  It  is  sufiicient  here  to  say, 
that  the  authority  of  the  government  to  enforce  an 
embargo  uj)on  the  ships  and  merchandise  of  its 
citizens  and  subjects,  has  been  made  a  subject  of 
grave  discussion,  both  in  the  United  States  and  in 
Great  Britain.  "  The  civil  embargo,"  says  Beawes,'^ 
"  is  laid  on  ships  and  merchandise  in  the  ports  of 
this  kingdom  by  virtue  of  the  king's  proclamation, 

'  Lindo  vs.  Rodney ^  Doug.,  613.        *  Lex  Mercatoria,  27"i. 


CIVIL   EMBAEGO.  169 

and  is  strictly  legal,  when  the  proclamation  does 
not  contravene  the  ayicient  laws,  or  tend  to  estalUsli 
new  ones,  but  only  to  enforce  the  execution  of  such 
laws  as  are  already  in  being,  in  such  manner  as  the 
king  shall  judge  necessary."  The  same  diocivivnd,  with 
the  liJce  qualifications,  is  laid  down  by  Blackstone.^ 

But  it  has  been  held  that  a  civil  embarp-o  cannot 
be  enforced  upon  British  ships  in  a  foreign  port, 
unless  by  the  consent  of  the  nation  to  which  that 
port  belongs ;  for  the  reason  that  such  an  embargo 
would  operate  to  the  prejudice  of  the  rights  of 
neighboring  nations,  which  cannot  lawfully  be  dis- 
turbed, however  much  such  an  act  might  operate 
for  the  benefit  of  the  nation  seeking  to  enforce  it.^ 

Whetlier  the  civil  embargo  imposed  by  the  Con-  The  embargo 
gress  of  the  United  States  in  1807  was  sanctioned  unuS?  states 
by  the  constitution  of  the  sjovernment,  was  made  a  pvernment 

''     ^  ^  ...  "1  1807. 

subject  of  much  learned  discussion  in  the  federal 
tribunals  at  that  time,  and  of  much  angry  contro- 
versy in  the  political  assemblages  of  the  people. 

It  is  certain,  that  without  in  any  manner  accom-  its  oppressive 
plishing  the  hostile  purpose  towards  Great  Britain,  commerce  oi 
which  led  to  its  adoption,  it  inflicted  injuries  upon  *'^®  nation. 
the  commerce  of  the  northern  and  eastern  states  of 
the  Union,  of  a  tenfold  greater  severity  than  all  the 
combined  injuries  received  by  the  southern  states, 
in  consequence  of  an  insufficient  protection  of  their 
peculiar  property.   It  was  contended  that  the  power 
conferred  upon  Congress  to  regidate  commerce,  did' 
not  carry  with  it  the  power  to  destroy,  to  put  an 

'  Blaclcstone's  Com.,  I.,  7  ;  vide  also  4  Mod.,  17Y  ;  Skinner,  93 ; 
1  Selkekl,  32. 

«  The  Gertrude,  2  Rob.,  211. 


170  EEPEISALS. 

end  to  commerce  altogether.  Tliat  regulation  was 
a  guidance,  a  control,  an  establishment  of  rules  for 
the  government  of  commerce,  and  not  the  power  of 
extinguishing  it  absolutely  and  without  limitation 
of  time.  But  the  people  whose  interests  were  in- 
wh^T^ro  *°  vaded  by  this  measui'e  of  the  government,  the  thou- 
nounced  con-  sauds  and  hundreds  of  thousands  who  were  utterly 

stitutional  by.  •it  tt  ti'j_  i,tt 

the  courts,  impoverished  and  beggared  by  its  results,  did  not 
nullify  the  law — they  did  not  rebel  against  the 
government — they  did  not  seize  upon  the  public 
property — they  did  not  trample  upon  the  constitu- 
tion and  the  insignia  of  their  common  country,  and 
undertake  to  erect  themselves  into  a  separate  con- 
federacy. They  referred  the  question  to  the  solemn 
decision  of  the  federal  tribunals ;  and  when  those 
tribunals  pronounced  the  enibargo  act  constitu- 
tional, they  acquiesced  in  that  decision.  The  great 
commercial  interests  of  the  United  States  believed 
the  embargo  act  to  be  unconstitutional,  clearly,  pal- 
pably so;  but  they  did  not  seek  to  take  the  law 
into  their  own  hands,  '''' because  tliey  did  not  wish  to 
hring about  a  revolution  nor  to  breah  iip  tlie  Uiiion" 
They  saw  that "  between  submission  to  the  decisions 
of  the  constituted  tribunals,  and  revolution  or  dis- 
union, there  was  no  middle  ground,  no  ambiguous 
condition,  no  half  allegiance  and  half  rebellion." 

The  principle  upon  which  the  law  of  nations  le- 

cognizes  the  right  of  a  sovereign  state  to  impose  a 

warlike  embargo,  forms  the  basis  of  what  are  called 

repf-isals. 

Reprisals  gen-      "  Reprisals,"^  says  Vattel,  "  are  used  between  na- 

eraUy.  ^-^^  ^^^  uatiou,  in  Order  to  do  themselves  justice, 

'  Vattel,  B.  IL,  c.  xviii.,  §  342. 


EEPEISALS.  ITl 

when  tliey  cannot  otherwise  obtain  it.     If  a  nation  ^^^/P^^f^ 

.  ^      ,         ,     ,  1  •  ^  individual 

lias  taken  possession  of  what  belongs  to  another,  if  wronga. 
she  refuses  to  pay  a  debt  or  repair  an  injury,  or  to 
give  adequate  satisfaction  for  it,  the  latter  may  seize 
something  belonging  to  the  former,  and  apply  it  to 
her  own  advantage,  till  she  obtains  payment  of  what 
may  be  due  to  her,  together  with  interest  and  dam- 
ages, or  keep  it  as  a  pledge  till  she  has  received 
ample  satisfaction.  In  the  latter  case,  it  is  rather  a 
stoppage  or  seizure,  than  a  reprisal — ^but  they  are 
frequently  confounded  in  common  language.  The 
effects  thus  seized  are  preserved  while  there  is  any 
hope  of  obtaining  satisfaction  or  justice.  As  soon 
as  that  hope  disappears,  they  are  confiscated  and 
then  the  reprisals  are  accomplished.  If  the  two  na- 
tions, upon  this  ground  of  quarrel,  come  to  an  open 
rupture,  satisfaction  is  considered  as  refused,  from 
the  moment  war  is  declared  or  hostilities  com- 
menced, and  then  also  the  effects  seized  may  be 
confiscated." 

"  In  reprisals,"  continues  the  same  author,  "  we 
seize  i>n  the  property  of  the  subject,  just  as  we 
would  on  that  of  the  state  or  sovereign.  Every 
thing  that  belongs  to  the  nation  is  subject  of  repri- 
sals whenever  it  can  be  seized,  provided  it  be  not  a 
deposit  intrusted  to  the  public  faith.  As  it  is  only 
in  consequence  of  that  confidence  which  the  propri- 
etor has  placed  in  tile  good  faith  of  the  government 
that  such  a  deposit  happens  to  be  made,  it  ought 
to  be  respected  even  in  open  war — such  is  the  con- 
duct observed  in  England  and  elsewhere,  with  re- 
spect to  the  money  which  foreigners  have  placed  in 
the  public  funds." 

The  sovereign  or  supreme  power  of  a  nation  ia 


172  REPEISALS. 

alone  vested  witli  the  autliority  of  making  or  order- 
ing reprisals.  This  is  tlie  universal  rule  of  all  civ- 
ilized comninnities.  It  is  not  doubted  that  the 
right  to  authorise  reprisals,  exists  as  well  for  the 
redress  of  wrongs  inflicted  upon  the  citizen  of  a 
state,  as  upon  the  state  itself. 

Commissions,  or  letters  of  marque,  however,  to 
secure  individual  redress,  are  rarely  issued,  and 
never  but  in  a  case  of  undoubted  and  flao-rant 
WTong.  U^Don  this  interesting  question,  the  re- 
marks of  Viscount  Palmerston,  made  in  the  British 
Parliament  in  1847,  upon  the  motion  of  Lord 
George  Bentnick  for  the  "  adoption  of  such  meas- 
ures as  might  secure  for  the  British  holders  of  un- 
paid Spanish  bonds,  redress  fi'om  the  government 
of  Sj^ain,"  are  particularly  instructive.     He  said  : 

"  My  noble  friend  has  quoted  passages  from  the 
law  of  nations,  laying  down  the  doctrine  that  one 
government  is  entitled  to  enforce  from  another,  re- 
dress for  all  wrongs  done  to  the  subjects  of  the 
government  making  the  application  for  redress,  and 
that  if  redress  be  denied,  it  may  justly  be  obtained 
by  reprisals  from  the  nations  so  refusing.  I  fully 
admit  to  this  extent,  the  principles  which  my  noble 
friend  has  laid  down.  At  the  same  time,  I  am  sure 
the  house  will  see  that  there  may  be  a  difference 
and  distinction  drawn  in  point  of  expediency)  and 
in  point  of  established  practice,  as  to  the  applica- 
tion of  an  indisputable  principle  to  particular  and 
different  cases.  Now,  if  the  government  of  Spain 
had,  we  will  say,  for  example,  violently  seized  the 
property  of  British  subjects,  this  country  being  on 
terms  of  amity  with  Spain,  under  treaties,  no  man 
will  for  a   moment,  hesitate  in  declaring,  that  it 


REPKISALS. 


1?.^ 


w<viild  be  the  duty  of  tliis  government  to  enforce 
redress.  In  the  same  manner,  in  any  transaction 
that  13  founded  on  mutual  compact  between  two 
governments,  in  any  transaction  that  is  founded  on 
the  previous  sanction  of  the  government,  whose 
subject  is  the  complainer,  in  any  case  of  that  sort, 
it  has  been  the  practice  of  Great  Britain  to  demand 
and  insist  upon  redress.  Again,  if  any  act  of  in- 
justice in  the  prosecution  of  trade  and  commerce, 
be  inflicted  on  British  subjects,  there  can  be  no  ques- 
tion as  to  the  course  which  this  country  ought  to 
pursue.  But  a  distinction  has  always  been  drawn 
l)etween  the  ordinary  transactions  of  British  sub- 
jects with  the  subjects  of  other  countries,  and  the 
transactions  of  British  subjects  with  the  govern- 
ments of  other  countries.  When  a  British  subject, 
engaged  in  trade  wuth  a  foreign  country,  sustains  a 
loss,  his  first  application  is,  to  the  law  of  that  coun- 
try for  redress.  K  that  law  is  not  properly  admin- 
istered in  his  case,  then  the  British  government 
steps  in  and  demands,  either  that  the  law  shall  be 
properly  dealt  out,  or  that  redress  shall  be  given  by 
the  government  of  that  state.  It  is  to  the  advan- 
tage of  this  country  to  encourage  commercial  deal- 
ings Avith  foreign  countries — but  I  do  not  know 
that  it  is  to  the  advantage  of  this  country  to  give 
great  encouragement  to  British  subjects  to  invest 
their  capital  in  loans  to  foreign  countries.  I  think 
it  is  inexpedient,  for  many  reasons,  that  that  course 
should  be  pursued.  It  exposes  British  subjects  to 
loss  from  trusting  governments  that  are  not  trust- 
worthy ;  and  if  this  principle  were  ad*  )pted  'as  a 
guide  for  the  practice  of  British  subjects,  that  the 
payment  of  such  loans  should  be  enforced  by  the 


174 


EEPKISALS. 


arms  of  England,  it  would  place  the  British  nntion 
in  the  situation  of  being  always  liable  to  be  in- 
volved in  serious  disputes  with  foreign  govern- 
ments, in  matters  with  regard  to  which  the  British 
government  of  the  day  might  have  had  no  oppor- 
tunity of  being  consulted,  or  of  giving  an  opinion 
one  way  or  the  other.  Although  I  enti'eat  the 
house,  upon  grounds  of  public  policy,  not  to  im 
pose  at  present,  upon  her  majesty's  government, 
the  obligations  sought  to  be  thrown  upon  them, 
yet  I  would  take  this  opportunity  of  warning 
foreign  governments,  who  are  the  debtors  to  Brit- 
ish subjects,  that  the  time  may  come,  when  this 
house  will  not  sit  patient  under  the  wrongs  and 
injuries  inflicted  upon  the  subjects  of  this  country. 
"  I  warn  them  that  the  time  may  come,  when  the 
British  nation  w^ill  not  see  with  tranquillity  the 
sum  of  £150,000,000  due  to  British  subjects,  and 
the  interest,  not  paid — and  I  must  warn  them,  that 
if  they  do  not  make  proper  efforts,  adequately  to 
fulfil  their  engagements,  the  government  of  this 
country,  whatever  men  may  be  in  office,  may  be 
compelled,  by  the  voice  of  j)ublic  opinion,  and  by 
the  votes  of  Parliament,  to  depart  from  that  which 
has  hitherto  been  the  established  practice  of  Eng- 
land, and  to  insist  upon  the  payment  of  debts  due 
to  British  subjects.  That  we  have  the  meahs  of 
enforcing  the  rights  of  British  subjects,  I  am  not 
prepared  to  dispute.  It  is  not  because  we  are 
afraid  of  these  states,  or  all  of  them  put  together, 
that  we  have  refrained  from  taking  the  steps  to 
which  my  noble  friend  would  urge  us.  England,  I 
trust,  will  always  have  the  means  of  obtaining  jus- 
tice for  its  subjects  from  any  country  on  the  face  of 


CAPTURES.  175 

the  earth.  But  this  is  a  question  of  expediency, 
and  not  a  question  of  power.  Therefore  let  no 
foreign  country,  which  has  done  wrong  to  British 
subjects,  deceive  itself  by  a  false  impression,  either 
that  the  British  nation  or  the  British  Parliament 
will  ever  remain  patient  under  wrong,  or  that,  if 
called  upon  to  enforce  the  rights  of  the  people  of 
England,  the  government  of  England  will  not  have 
n.mple  power  and  means  at  its  command  to  obtain 
justice  for  them." 

This  principle  is  not  only  fully  acknowledged,  Rig^**  ^c- 
but  in  several  instances  it  has  been  acted  upon  by  by  aii  nations. 
the  government  of  the  United  States.     In  the  year  Acted  upon  by 
1834,  it  was  proposed  by  President  Jackson,  as  a  states/ 
measure  of  redress  against  France,  on  behalf  of  cit- 
izens of  the  United  States,  having  lawful  claims 
against  that  nation;  and  again  in   1847,  the  non- 
payment of  debts  due  to  American  citizens  by  the 
republic  of  Mexico  was  made  the  leading  ground 
of  the  war  which  was  carried  on  against  that  nation. 

These  general  reprisals,  for  the  redress  of  individ- 
ual wrongs,  are  considered  by  publicists  as  a  species 
of  hostility,  an  imperfect  war,  and  usually  a  prelude 
to  open  hostilities.  They  are  experimental  attempts 
to  secure  indemnity  without  an  open  conflict  of 
arms,  which  are  successful  or  otherwise,  according 
to  the  character  of  the  matter  in  dispute,  and  the 
relative  situation,  character,  strength,  and  spirit  of 
the  nations  concerned.^ 

Reprisals  made  by  one  belligerent  of  the  property  Definition  of 
of    another,   pursuant   to    general    hostilities,   are  ^""p*"^®- 
denominated  captures. 

'  1  Kent's  Com.,  69,  70. 


17G 


CAPTUEES. 


By  public  and  Captures  are  eitlier  made  by  tlie  government 
ll7seh.  ^™^  vessels-of-war,  or  by  privateers.  The  law  upon  the 
subject  of  captures  is  alike  applicable  to  those 
made  by  ships-of  war  and  by  privateers.  The  final 
disposition  of  the  proceeds  of  a  lawful  capture 
varies  under  varying  circumstances,  which  will  be 
considered  hereafter.  It  is  only  necessary,  in  this 
connection,  to  review  the  subject  as  particularly 
applicable  to  letters  of  marque. 


Privateers. 


Their  author- 
ity,  power, 
and  rights. 


A  privateer  is  a  vessel,  the  property  of  private 
individuals,  fitted  out  and  equipped  at  their  expense, 
but  specially  commissioned,  by  what  are  denomi- 
nated "letters  of  marque  and  reprisal,"  wdth  the 
principal  design  of  attacking  and  seizing  the  vessels 
and  property  of  the  enemy ;  but  also  of  preventing 
neutrals  from  carrying  on  an  illicit  trade  with  the 
enemy. 

The  right  of  making  war,  as  we  have  seen,  is  a 
right  appertaining  exclusively  to  the  sovereign 
power  of  the  state ;  and  this  right  necessarily  car- 
ries with  it,  as  an  incident,  that  of  directing  and 
controlling  all  its  operations. 

Private  citizens  cannot,  of  themselves,  and  without 
commission  from  the  supreme  power,  take  any  steps 
ill  relation  to  the  perpetration  of  acts  of  hostility. 

Persons  fitting  out  ships  to  cruise  against  the 
enemy,  acquire  the  property  which  they  capture, 
either  in  whole  or  in  part,  according  to  the  pro^•l- 
sions  of  the  contract  made  with  them,  as  a  compen- 
sation for  the  expenses  which  they  incur  and  Qk; 
hazards  which  they  assume  ;  and  this  property  they 
acquii-e  solely  by  virtue  of  the  commissions  from 
the  sovereign  powei'  under  Avhich  they  sail. 


CAPTUEES.  177 

Private  citizens  are  under  no  lesral  obligation  of 
scrupulously  weighing  tlie  justice  of  a  war,  and 
indeed  have  not  always  the  means  or  opportunity 
to  enable  them  to  do  so  ;  they  are,  therefore,  bound 
to  rely  upon  the  judgment  of  the  supreme  power 
of  the  nation,  and  may,  doubtless,  with  a  safe  con- 
science, serve  their  country  by  fitting  out  privateers. 
"  But,"  says  Vattel,  "  it  is  an  infamous  proceeding 
on  the  part  of  foreigners,  to  take  out  commissions 
from  a  prince,  in  order  to  commit  depredations  on  a 
nation  innocent  with  respect  to  them.  The  thirst 
of  gold  is .  their  only  inducement,  nor  can  the  com- 
mission they  have  received  efface  the  infamy  of  their 
conduct,  though  it  screens  them  from  punishment."^ 

Formerly,  reprisals  were  considered  lawful,  when 

made  by  a  private  subject  of  a  belligerent  power, 

without  a  commission. 

It  was  not  until  the  fifteenth  century  that  they  Privateers 

'  1       T  ,'  1        1,1,       •     ,       •,.         must  bo  corn- 

were  considered  essential,  and  that  private  citizens  missioned. 

were  forbidden,  without  license,  to  fit  out  vessels  to 
cruise  against  the  enemy.  It  was  about  this  time 
that  laws  to  this  effect  were  passed  by  Germany, 
France,  Spain,  and  England.  It  soon  became,  and 
until  late  years  uniformly  continued  to  be,  the 
practice  of  maritime  nations,  to  make  use  of  the 
voluntary  aid  of  individuals  against  their  enemies,  as 
auxiliary  to  the  public  force.  Indeed,  it  is  said  by 
Byukershoek,  that  the  Dutch  formerly  employed  no 
vessels-of-war  but  such  as  were  owned  by  private 
persons,  and  to  whom  the  government  allowed  a 
portion  of  the  captured  property,  as  well  as  indem- 
nity from  the  public  treasury.     It  was  held  by  Sir 

'    Vattel,  B.  III.,  c.  XV.,  §§  223,  229. 
12 


ITS 


CAPTURES. 


Mattliew  Hale  to  be  an  unlawlLil  depredation,  'ii  a 
.subject,  to  attack  the  enemy's  vessels,  except  in  Ms 
own  defence,  without  a  commission. 
Doctrine  of         Xhe  subiect  has  undero;one  frequent  discussion  in 

courts  of  Uni-  n    r~\  -r»    •       •  i     •  i         ri 

ted  States  on  the  courts  01  (jrreat  JDi'itam  and  in  the  bupreme 
this  subject.     Q^^j,^  ^^  ^l^g  United  States ;  and  the  doctrine  of  the 

law  of  nations  is  considered  to  be,  that  private  citi- 
zens cannot  acquire  a  title  to  hostile  property,  unless 
seized  under  commission ;  but  that  they  may,  never- 
theless, seize  upon  hostile  property  in  their  own 
defence.  If  they  commit  depredations  upon  the 
property  of  the  enemy  without  a  license,  they  act 
upon  their  own  peril,  and  subject  themselves  to 
punishment  by  their  own  country ;  but  the  enemy 
are,  not^\dthstanding,  precluded  from  treating  them 
MS  criminals ;  and  as  respects  the  enemy,  they  vio- 
late no  rights  of  capture.^ 
Character  of       The  practicc  of  cruisiug  with  privixte  armed  ves- 

privateering.  ,  7  ,...,,  -, 

si'is  under  government  commission,  m  other  words, 
of  privateering,  which  has  been  heretofore  regarded 
as  a  legitimate  mode  of  destruction  of  the  enemy's 
commerce,  by  all  maritime  nations,  has  been,  of  late 
years,  arraigned  as  subject  to  enormous  abuses,  as 
;tn  encouragement  of  the  spirit  of  lawless  depreda- 
tion, or  piracy,  and  as  inconsistent  with  the  humane 
rules  which  have  been  universally  adopted  in  miti- 
gation of  the  severities  of  modern  warfare.  ' 
Considered  in      Eamcst  cudeavors   have   been  made,  by  many 

conflict   with        i't,i  •  i  tij  i  j. 

the  spirit  of  philanthropic  and  enlightened  persons,  to  procure 
the  age.         ^-^^  entire  abrogation  of  the  system,  as  in  conflict 
^vitli  the  liberal  spuit  of  the  age. 

\The  Haase,  1  Eob.,  286;  The  Rebecca,  1  Rob.,  227;  The 
Am  r  Parentum,  1  Rob.,  303  ;  The  Twee  Cressuster,  2  Rob.,  284; 
The  Melomane,  5  Rob..  41 ;   The  Joseph,  1  Gallis,  045. 


CAPTURES.  179 

It   lias   lately  been   declared,   by  distino-iiislied  ^story  of  the 

•f  11  a  efforts  of  the 

peers  m  tlie  British  rarliament,  that  the  system  of  United  states 
privateering  would  have  been  abolished  by  all  the  to^puWown 
great  powers,  by  the  treaty  of  Paris,  which  succeed-  as'^rreilc^'of 
ed  the  war  with  Russia,  but  for  the  objection  of  the  private 

i-ry.-io  1  11  '1  wars   of  the 

the  United  states,  through  her  representative  then  middle  ages. 
at  that  court.  This  declaration,  though  perhaps, 
literally  true,  can  scarcely  be  considered  ingenuous, 
inasmuch  as  it  was  made  without  disclosing  the 
fact,  which  could  not  have  been  unknown  to  those 
who  made  it — that  the  ground  of  objection  of  the 
representative  of  the  United  States  was,  that  the 
proposed  treaty  prohibition  did  not  go  fcu'  enough 
to  attain  the  purpose  which  the  well-known  policy 
of  the  United  States  government  required.  A  brief 
review  of  the  efforts  which,  in  this  behalf,  have 
heretofore  been  made  by  that  government,  mil  suf- 
ficiently demonstrate  this  policy. 

In  the  treaty  of  1*778,  between  the  United 
States  and  France,  it  was  stipulated,  "That  no 
subject  of  the  most  Christian  king  shall  apply  for 
or  take  any  commission  or  letters  of  marque  for 
arming  any  ship  or  ships  to  act  as  privateers  against 
the  said  United  States,  or  any  of  them,  or  against 
the  property  of  any  of  the  inhabitants  of  any  of 
them,  or  against  the  people,  subjects,  or  inhabitants 
of  the  United  States,  or  any  of  them,  from  any 
prince  or  state  with  which  the  United  States  shall 
be  at  war;  nor  shall  any  citizen,  subject,  or  inhabi- 
tant of  the  United  States,  or  any  of  them,  apply 
for  or  take  any  commission  or  letters  of  marque  for 
arming  any  ship  or  ships  to  act  as  privateers  against 
the  subjects  of  the  most  Christian  king,  or  any  of 
them,  or  the  property  of  any  of  the  inha]>itants  or 


180  CAPTUEES. 

any  of  them,  from  any  prince  or  state  witli  which 
the  United  States  shall  be  at  war;  nor  shall  any 
citizen,  subject,  or  inhabitant  of  the  said  United 
States,  or  any  of  them,  apply  for  or  take  any  com- 
mission or  letters  of  marque  for  arming  any  ship  oi' 
ships  to  act  as  privateers  against  the  subjects  of  the 
most  Christian  king,  or  any  of  them,  or  the  proper- 
ty of  any  of  them,  from  any  prince  or  state  with 
which  the  said  king  shall  be  at  war ;  and  if  any 
person  of  either  state  shall  take  such  commission 
or  letters  of  marque,  he  shall  be  punished  as  a  pi- 
rate. It  shall  not  be  lawful  for  any  privateers,  not 
belonging  to  the  subjects  of  the  most  Christian 
king,  nor  citizens  of  the  said  United  States,  who 
have  commission  from  any  other  prince  or  state  at 
enmity  with  either  nation,  to  fit  their  ships  in  the 
ports  of  either  the  one  or  the  other  of  the  aforesaid 
parties,  to  sell  what  they  have  taken,  or  in  any 
other  way  whatsoever  to  exchange  their  ships,  mer- 
chandise, or  any  other  lading,  neither  shall  they  be 
allowed  to  purchase  victuals,  except  such  as  shall  be 
necessary  for  their  going  to  the  next  port  of  that 
prince  or  state  from  which  they  have  commissions." 

In  the  message  of  President  Jefferson  to  Con- 
gress, in  December,  1805,  in  referring  to  the  acts  of 
privateers  oif  the  American  coast,  he  says :  "  Some 
of  them  are  without  commissions,  some  with  illef^al 
commissions,  others  with  legal  form,  but  committing 
piratical  acts  beyond  the  authority  of  their  com- 
missions;" and  then  he  proceeds  to  apprise  the 
Congress  that  he  has  equipped  a  force  to  capture 
all  vessels  of  this  description  and  "  to  bring  the  of- 
fenders in  for  trial  as  pirates." 

In  1812,  eight  days  after  the  declaration  of  war 


CAPTUEES.  181 

against  Great  Britain,  tlie  Congress  of  tlie  United 
States  passed  a  law,  limiting  and  defining  tlie  rights 
of  privateers,  and  endeavored,  as  far  as  practicable, 
to  assimilate  tliem  to  national  vessels. 

Tlie  fii'st  section  confers  npon  tlie  President  tlie 
power  to  annul,  at  pleasure,  all  licenses  or  commis- 
sions which  he  might  grant  under  the  act  of  June, 
1812. 

The  second  section  is  as  follows :  "  All  persons 
applying  for  letters  of  marque  and  reprisal,  pursu- 
ant to  the  act  aforesaid,  shall  be  required  to  state 
in  writing  the  name,  and  description,  and  tonnage 
and  force  of  the  vessel,  and  the  name  and  residence 
of  the  owner,  the  intended  number  of  the  crew, 
etc. ;"  and  the  third  section  provides  for  ample  se- 
curity to  be  given  for  the  strict  and  due  observance 
of  the  treaties  and  laws  of  the  United  States,  and 
of  the  instructions  given  them  for  their  conduct ; 
and  the  remaining  sections  require  the  captures 
which  may  be  made,  to  be  brought  into  port  for 
adjudication  by  the  court  of  admiralty;  prohibit 
their  sailing  without  special  instructions;  compel 
the  commanders  to  keep  regular  journals  of  all 
that  occurs,  daily,  and  transmit  them  to  the  gov- 
ernment ;  and  impose  upon  the  commanders  of 
public  armed  vessels  the  duty  of  examining  these 
journals  when  meeting  the  privateer  at  sea,  and  to 
compel  their  commanders  to  obey  their  instructions, 
and  all  this  under  penalty  of  forfeiture  of  all  inter- 
est in  any  captures  which  they  may  make. 

*  In  1846,  during  the  war  between  Mexico  and  the 
United  States,  President  Polk,  in  his  message  to 
Congress,  in-  December  of  that  year,  held  the  fol- 
lowing language : 


182  CAPTURES. 

"  Information  lias  been  received  at  tlie  depart- 
ment of  state,  that  the  Mexican  government  lias 
sent  to  Havana  blank  commissions  to  j)rivateers, 
and  blank  certificates  of  naturalization,  signed  by 
General  Salas,  the  present  liead  of  the  Mexican 
government.  There  is  also  reason  to  apprehend 
that  similar  documents  have  been  transmitted  to 
other  parts  of  the  world.  As  the  preliminaries  re- 
quired by  the  practice  of  civilized  nations  for  com- 
missioning privateers  and  regulating  their  conduct, 
have  not  been  observed,  and  as  these  commissions 
are  in  blank,  to  be  filled  up  with,  the  names  of  citi- 
zens and  subjects  of  all  nations  who  may  be  will- 
ing to  purchase  tliem,  the  whole  proceeding  can 
only  be  construed  as  an  invitation  to  all  freebooters 
to  cruise  a2:ainst  American  commerce. 

"  It  will  be  for  our  courts  of  justice  to  decide 
whether,  under  such  circumstances,  these  Mexican 
letters  of  marque  and  reprisal  shall  protect  those 
who  accept  them,  and  commit  robberies  upon  the 
high  seas  under  their  authority,  from  the  pains  and 
penalties  of  piracy.  If  the  certificate  of  naturali- 
zation thus  granted,  be  intended  to  shield  Spanish 
subjects  from  the  guilt  and  punishment  of  pirates, 
under  our  treaty  with  Spain,  they  will  certainly 
prove  unavailing." 

The  laws  of  the  United  States,  prohil)iting  the 
enlistment  of  American  citizens  in  the  service  of 
foreign  powers,  under  severe  penalties,  are  more 
rigorous  than  those  of  any  other  nation ;  and  the 
act  of  April  20th,  1818,  among  other  things,  pro- 
vides that  it  shall  be  a  misdemeanor  for  "  any  citi- 
zen of  the  United  States  to  fit  out  aild  arm  or  to 
increase  or  augment  the  force  of  any  armed  vessel, 


CAPTUEES.  183 

witli  intent  tliat  sucli  vessel  shall  he  employed  in 
tlie  service  of  any  foreign  power  at  war  ^\atli  an- 
otlier  power  witli  whom  we  are  at  peace — or  Le 
concerned  in  fitting  out  any  vessel  to  cruise  or  com- 
mit hostilities  against  a  nation  at  peace  with  us." 
These  laws  expressly  punish  by  fine  and  imprison- 
ment, any  citizen  of  the  United  States,  found  on 
board  of  letters  of  marque,  cruising  against  the 
commerce  of  a  neutral  power,  or  who  shall  leave  the 
American  jurisdiction  with  the  intent  of  being  so 
employed. 

In  the  case  decided  in  the  Supreme  Court  of  the 
United  States,  already  cited  in  another  connection,^ 
it  was  held  that  "  captures  made  by  vessels  so  il- 
legally fitted  out,  whether  a  public  or  a  private 
armed  ship,  are  tortious — and  the  original  owner  is 
entitled  to  restitution  when  brouo-ht  within  our 
jurisdiction." 

But  the  early  policy  and  disposition  of  the  Unit- 
ed States  government  was  fully  and  eloquently  ex- 
pressed by  her  distinguished  minister.  Dr.  Franklin, 
in  his  language  to  Mr.  Oswald,  the  British  commis- 
sioner, in  negotiating  the  treaty  of  peace  of  1783, 
at  the  Court  of  St.  James. 

"It  is,"  said  he,  "for  the  interest  of  humanity  in 
general,  that  the  occasions  of  war  and  the  induce- 
ments to  it  should  be  diminished.  If  rapine  is 
abolished,  one  of  the  encoura2rements  of  war  is 
taken  away,  and  peace,  therefore,  more  likely  to 
continue  and  be  lasting.  The  practice  of  robbing- 
merchants  on  the  high  seas,  a  remnant  of  the  an- 
cient piracy,  though  it  may  be  accidentally  bene- 

'  The  Santissima  Trin'dad,  7  Wheat.,  283. 


i^-i  CAPTURES. 

ficial  to  particular  persons,  is  far  from  being  pro- 
fitable to  all  who  are  engaged  in  it,  or  to  the 
nation  that  authorizes  it.  In  the  Ijeiiinnino;  of 
a  war,  some  rich  ships,  not  upon  their  guard,  are 
sm^prised  and  taken.  This  encourages  the  first 
adventurers  to  fit  out  more  armed  vessels,  and 
many  others  do  the  same.  But  the  enemy,  at  the 
same  time,  become  more  careful,  arm  their  mer- 
chant ships  better,  and  render  them  not  so  easy  to 
be  taken ;  they  go  also  more  under  the  protection 
of  convoys.  Thus,  while  the  privateers  to  take 
them  are  multiplied,  the  vessels  sul)ject  to  be  taken 
and  the  chances  of  profit  are  diminished,  so  that 
many  cruises  are  made,  wherein  the  exj)enses  over- 
go the  gains,  and,  as  is  the  case  in  other  lotteries, 
though  some  have  good  prizes,  the  mass  of  adven- 
turers are  losers — the  whole  expense  of  fitting  out 
all  privateers  dui^ing  a  war,  being  much  greater 
than  the  whole  amount  of  o-oods  taken.  Then 
there  is  the  national  loss  of  all  the  labor  of  so  many 
men,  during  the  time  they  have  been  employed  in 
robbing,  who,  besides  spending  what  they  get  in 
riot,  drunkenness  and  debauchery,  lose  their  lial>its 
of  industry,  are  rarely  fit  for  ^ny  sober  business 
after  peace,  and  serve  only  to  increase  the  number 
of  highwaymen  and  housebreakers.  Even  the  un- 
dertakers who  have  been  fortunate,  are,  by  .suddjen 
\vealth,  led  into  expensive  living,  the  habits  of 
which  continue  when  the  means  of  supporting  it 
cease,  and  finally  ruin  them — a  just  punislunent 
for  their  having  w^antonly  and  unfeelingly  I'uined 
many  honest,  innocent  traders  and  families,  whose 
subsistence  was  obtained  in  serving  the  common  in- 
ti'iests  of  mankind." 


CAPTURES.  135 

Pursuant  to  the  policy  thus  early  announced, 
treaties  have  been  made  by  the  United  States 
with  many  foreign  ^powers,  by  which  it  has  been  ' 
agreed  that  if  the  subjects  of  either  party  take  let- 
ters of  marque  from  the  enemies  of  the  other,  the}' 
shall  be  considered  and  j)unished  as  piraUs — such 
is  the  treaty  made  with  France  in  1778  ;  with  the 
Netherlands  in  1782;  with  Sweden  in  1783;  with 
Prussia  in  1785,  and  again  in  1789;  with  Great 
Britain  in  1795  ;  with  Spain  in  1795 ;  with  Central 
America  in  1825  ;    and  with  Colombia  in  1824. 

The  learned  compilers  of  the  latest  English  work 
on  the  law  of  maritime  warfare  very  candidly  de- 
clare, and  the  justice  of  the  observation  is  patent 
to  all  familiar  with  the  diplomatic  history  of  the 
United  States :  "  The  government  of  the  United 
States  has  the  merit  of  having  been  the  first  power 
in  modern  times,  which  has  endeavored  to  put 
down  this  relic  of  the  private  wars  which  disgraced 
the  middle  aii^es."^ 

Some  of  the  general  principles  established  in  the 
law  of  capture  will  be  here  stated,  but  will  be  more 
fully  considered  in  that  portion  of  this  treatise  de- 
voted to  the  subject  of  prize  jurisdiction  and  pro- 
ceedings. 

The  coi^imission  of  a  privateer  is  always  taken  Revocation  of 
subject  to  the  power  which  grants  it.     It  may  be  privateers. 
vacated  either  by  express  revocation,  with  or  with- 
out cause,  by  a  cessation  of  hostilities  between  the 
nations  which  they  affect,  or  by  the  misconduct  of 
the  grantees.^ 

^  Hazlitt  &  Roche's  Manual  of  the  Law  of  Maritime  Warfare,  1 04. 
'  The  Mariamne,  5  Rob.,  9  ;  The  Tho^nas  Gibbons,  8  Cranch,  421. 


186  CAPTUEES. 

Validity  of        The  Validity  of  a  capture  made  by  a  privateer,  is 

capture   not  iiipi  i  .  -.. 

affected  by      not  atfected  by  the  tact  that  the  master  is  an  ahen 
a^en  enemy.    Guemy,  although  the  effect  of  that  might  be  the 
condemnation  to  the  government   of  what  other- 
wise would  have  been   his  interest  in  the  prize. 
The   owners  and  crew  are  as  much  parties  in  a 
prize  court  as  the  captain,  and  his  national  charac- 
ter can  in  no  manner  affect  their  rights.^ 
Distinction  be-      There  is  a  distinction  between  a  privateer  and  a 
tears  and  let-  letter  of  marquc  in  this,  that  the  former  are  always 
terso  maique.  gq^^jppg^j  fQj.  ^j^g  sole  purpose  of  War,  while  the  lat- 
ter may  be  a  merchantman,  uniting  the  pui'poses  of 
commerce  to  those  of  caj)tm'e.    In  popular  language, 
however,  all  private  vessels  commissioned  for  hostile 
pm'i^oses,  uj)on  the  enemy's  property,  are  called  let- 
ters of  marque. 

A  ship  furnished  with  letters  of  marque  is  deemed 
a  ship  of  war.  Lord  Stowell  says :  "  A  ship  fm'- 
nished  with  a  letter  of  marque  is  manifestly  a  ship 
of  war,  and  is  not  otherwise  to  be  considered  be- 
cause she  acted  also  in  a  commercial  capacity.  The 
mercantile  character  being  superadded,  does  not  pre- 
dominate over  or  take  away  the  other."^ 
Registered  ^g  ^q  ^]^q  claims  of  British  subiects,  it  has  been 

owner  of   pri-  "  ' 

vateer  person  held  that  the  pcrsou  whosc  name  appears  on  the  regis- 
ter of  the  privateer,  must  be  regarded  as  the  owner. 
Rule  not  ap-  Xsut  forei^-ners  are  not  affected  by  this  'limitation, 

pUcable  to  for-  =>  .     *'  ' 

eignera.  auQ   may  sustaiu   a  claim   against   any  oona  jidb 

owner  whose  name  does  not  apj)ear  on  the  register. 

In  the  case  deciding  this  point,^  Lord  Stowell 

says :  "  It  appears  that  Mr.  Parry  was  actively  and 

'  The  Mary  and  Susan,  1  Wheat.,  46. 

'  The  Fanny,  1  Dodson,  448. 

^  The  Neustra  Senora  de  los  Dolores,  1  Dodson,  290. 


CAPTURES.  137 

directly  concerned  in  the  purchase  and  outfit  of  this 
vessel,  and  that  the  appointment  of  the  master  took 
place  under  his  directions.  There  is  a  series  of  let- 
ters, too,  which  show  that  he  continued  afterward 
to  bestow  his  time  and  attention  in  the  manao-e- 
ment  of  this  property,  as  property  in  which  he  was 
interested.  Nothing,  therefore,  can  be  more  clear 
than  that  he  is  to  be  considered  as  a  proprietor,  and 
that  he  would,  in  all  justice,  be  entitled  to  the  bene- 
fit which  might  be  acquired  in  that  character,  and 
consequently  that  he  must  be  responsible  for  all  the 
loss  that  may  be  sustained.  Mr.  Parry,  having  con- 
tributed his  money  in  the  purchase  and  outfit  of  the 
vessel,  had  a  legal  right  to  have  his  name  inserted 
in  the  register,  and  he  can  have  no  right  to  plead 
his  own  laches  in  order  to  relieve  himself  from  a 
claim." 

It  is  well  settled  that  the  owners  of  a  privateer  Liaboity  of 

T.-iTP  ..  i«i         -  ,^  ,^  -\     '       owners  of  pri- 

are  liable  lor  any  injury  which,  either  through  ig-  vateers. 
norance  or  illegality,  has  been  inflicted  either  by 
the  officers  or  crew,  in  the  execution  of  the  business 
of  their  employment.  But  when  that  business  is 
departed  fr^om,  by  a  violation  or  excess  of  orders, 
and  injuries  result  in  consequence,  the  owner  is 
not  liable. 

There  must  be  a  capture,  as  prize  of  war,  as  the  Basis  of  ua- 
basis  of  the  owner's  responsibility,  except  to  the 
amount  of  the  bond  given  on  receipt  of  the  com- 
mission and  the  forfeiture  of  the  vessel.  To  this 
extent  the  owners  are  liable,  even  for  a  piratical 
seizure  and  spoliation.^ 

But  where,  in  the  performance  of  lesritimate  acts,  Limitatiou  of 

'  -•■  o  '  liability. 

*  Dias  vs.  The  Revenge,  3  Washington,  262. 


188  CAPTUEES. 

tlie  master  or  crew  commit  acts  of  outrage  in  excess 
of  their  autliorit}',  tiie  owners  are  liable  to  the  full 
value  of  the  property  injured  or  destroyed,  though 
not  to  damages  for  the  loss  of  a  voyage;  the  prin- 
ciple "being,  to  absolve  the  owTiers  from  liability  to 
vindictive  damage  for  trespasses  committed  by  a 

crew/ 

Although  a  captor,  in  the  destruction  of  property 
which  he  has  taken,  acts  under  a  sense  of  duty  to 
his  government,  this  does  not  make  him  any  the 
less  bable  to  the  fullest  extent,  to  the  claimant.  In 
such  a  case  the  captor  must  seek  his  indemnifica- 
tion from  his  government.^ 
Owners  Uabie  The  owuers  of  a  privateer  are  liable  in  solido  ; 
ieTCr^y '^'^  and  a  joint-owner  cannot  absolve  himself  by  show- 
ing compensation  to  the  extent  of  his  proportionate 
interest.^ 

A  sentence  of  condemnation  by  a  prize  court  is 
absolutely  essential,  in  all  cases,  to  complete  the 
transfer  of  title  to  maritime  prizes  from  the  original 
owners  to  the  captors.     So  that,  if  a  ship  be  taken 
by  a  privateer  and  not  carried  into  port  and  con- 
demned, the  captors  acquire  no   property  in  the 
prize,  and  can  confer  no  property  whatever  upon  a 
purchaser.^ 
Privateers  not      Privateers  are  not  considered  within  the  terms  of 
vate'pro'pefty  a  capitulatiou,  by  the  provisions  of  which  private 
on  capituia-    ppope^ty  generally  is  to  be  protected.     The  iJasli^ 
carrying  sixteen  guns,  with  tackle,  bolts,  <fec.,  was 
taken  possession  of,  with  two  others,  in  the  harbor 

'  The  Amiable  Nancy,  1  Paine,  111. 
'  The  Acteon,  2  Dodson,  48. 
=•  5  Rob.  291. 
.  ••  15  Vin.  Ab.,  51. 


CAPTURES.  189 

of  Browershaven,  after  the  surrender  of  Walclieren, 
in  virtue  of  orders  from  Commodore  Owen,  com- 
manding a  division  of  his  majesty's  ships  engaged 
in  the  expeditiop.  A  claim  was  made  on  behalf  of 
Minter  &  Co.,  of  Browershaven,  for  this  vessel, 
under  the  second  article  of  capitulation,  by  which 
it  was  agreed  that  "  all  private  property  should  be 
protected."  Lord  Stowell  said:  "Privateers  are 
private  property  in  one  sense;  but  they  have,  at 
the  same  time,  a  public  character  impressed  upon 
them  by  their  employment ;  though  they  are  private 
property,  they  are  still  private  property  employed 
in  the  public  service."^ 

By  the  law  of  nations,  letters  of  marnue  or  re-  Limitation  of 

•      1        •!!  1        •  1  1  •  c         ^  anthoritv  of 

pnsal  will  not  ^authorize  the  molestation  oi  embas-  letters  of 
sadors,  nor  of  those  who  travel  for  religion,  nor  of  Sw^of  nJ- 
students,  scholars,  or  their  books.  *^°"^- 

The  leo-ality  of  a  capture  may  exclusively  depend  Legality  of 
upon  the  orders  or  ordinances  oi  the  governments  depend  on 
of  the  captors ;  and  where  captures  are  made  pur-  order^^^* 
suaut  to  such  orders,  though  manifestly  in  violation 
of  neutral  rights  and  the  law  of  nations  (as  in  the 
case  of  the  Berlin  and  Milan  decrees,  or  the  orders 
in  council  of  1812),  they  must  be  deemed,  as  to 
the  captors,  as  rightful ;  and  although  a  tribunal  of 
prize  might  not  lend  its  aid  to  enforce  such  captures, 
it   would    probably   be    bound   to    abstain   from 
obstructing  the  captors.^ 

To  constitute  a  valid  capture,  there  must  always  intention  to 

-^  .  .  ,        seize  requisite 

be  some  act  done  manifesting  the  mtention  to  seize  to  a  valid  cap- 
and  retain  the  prize ;   but  such  intention  may  be  *'^®* 


•   ■■  1  Edwards,  271. 
-  Le  Maissonnaire  et  ah.  vs.  Keating,  2  Gallison,  334. 


190  CAPTUKES. 

a  proper  inference  from  the  conduct  of  tlie  cap- 
tor.^ 
A  capture  in      A  Capture  made  within  neutral  waters,  is  deemed 
vaUf  L'^'Te-'  a  rightful  capture,  as  between  belligerents.     The 
tAveenbeiiiger-  ueutral  powcr  may  question  its  validity ;    and  as 
to  him,  it  is   considered  void,  unless,  both    ships 
being  in  neutral  waters,  the  captured  vessel  com- 
mences hostilities  upon  the  other ;  in  such  case,  the 
neutral  protection  is  forfeited,  and  a  capture  ensuing, 
it  is  to  be  considered  rightful,  even  as  against  the 
neutral.2 
Question  of        As  to  the  qucstiou  when,  in  point  of  time,  prop- 
ture  consider-  erty  seizcd  is  vestcd  in  the  captors,  there  is  no  other 
And  whether  uuiform  rulc  amoug  nations  than  that  which  requires 
actual  posses-  ^y^^  ^^^^  secure  posscssiou.     As  to  what  constitutes 

sion  neces-  ... 

Bary.  such  posscssion,  there  is  considerable  diversity.'^ 

"  The  first  question,"  says  Lord  Stowell,  in  the 
first  case  here  cited,  "  that  will  occur,  refers  to  the 
time  of  the  captm^e — whether  that  is  to  be  dated 
from  the  actual  taking  possession,  or  the  previous 
striking  of  colors  ;  and  I  think  that  the  striking  of 
the  colors  is  to  be  deemed  the  real  deditio.  If  the 
French  had  succeeded  in  their  attempt  to  defeat 
that  surrender,  then  the  actual  final  taking  posses- 
sion must  have  been  alone  considered ;  Imt  as  that 
attempt  failed,  I  am  of  opinion  that  the  act  of  for- 
mal submission,  ha\dng  never  been  effectively  dis- 
continued, must  be  deemed  the  consummation  of 
the  capture ;  and  if  so,  the  next  question  will  be, 
where  was  the  vessel  at  the  time  this  act  took 
place  ?  and  this  is  proved  to  have  been  '  when  she 

'  The  Grotius,  9  Cranch.,  368. 

'  The  Anne,  3  Wheaton,  435. 

^  The  Santa  Cruz,  1  Rob.,  50 ;   The  Eebeccah,  1  Rob.,  233. 


JAPTUEES.  191 

was  about  to  go  into  tlie  road  to  anchor  tliere' ;  for 
sucli  is  the  expression  of  the  witness  upon  the  third 
interrogatory,  which  points  more  immediately  to 
the  place  of  caj)tui'e ;  although  on  the  nineteenth, 
which  is  pointed  only  to  the  general  course  of  the 
vessel  on  her  voyage,  he  says :  '  She  put  into  the 
road  there.'  The  second  witness  describes  her  as 
merely  '  passing  by  the  Isle  of  Marcon  at  the  time ;' 
and  the  third  says,  in  the  language  of  the  first, 
that  '  she  was  about  to  go  into  the  road  to  anchor 
there.'  Clearly,  by  all  these  descriptions,  she  had 
not  entered  the  road ;  and  she  was  under  sail  at  the 
time  she  struck  her  colors.  In  point  of  locality, 
then,  the  claim  of  the  admiral  is  not  founded,  for 
she  was  not  in  i/psis  faucihus.  She  was  about  to 
enter,  but  was  not  actually  entering ;  and  that  is 
the  point  at  which  the  admiralty  right  commences." 

A  vessel  was  captured  at  Barbadoes,  and  the  cap- 
tors having  returned  the  ship's  papers,  intimated  to 
the  captain  that  he  had  better  follow  him  to  An- 
tigua. On  the  following  day  the  captors  took  bod- 
ily possession,  and  it  was  held  that  the  seizure  made 
at  Barbadoes  was  continued  throughout,  and  the 
actual  possession  on  the  second  day  was  not  to  be 
re  guarded  as  a  fresh  seizure.^ 

To  constitute  a  captm-e,  so  as  to  occasion  a  recap- 
ture, no  actual  possession  need  be  taken. 

A  vessel  was  ordered  to  lie-to  by  a  French  lug- 
ger, calling  herself  a  privateer,  but  by  reason  of 
the  boisterous  weather,  no  man  was  sent  on  board. 
Lord  Stowell  said:  "I  can  by  no  means  agree  to 
what  has  been  advanced  in  the  argument  that  it 

I 

'  The  Hercules,  2  Dod.,  363. 


192 


CAPTUEES. 

was  on  this  account  no  capture.  The  sending  of  a 
j  trize-master  on  board  is  an  overt  act  of  possession, 
1  >ut  by  no  means  essential  to  constitute  a  capture. 
If  the  merchantman  was  obliged  to  lie-to,  and  obey 
the  direction  of  the  French  lugger,  and  await  her 
further  orders,  she  was  completely  under  the  do- 
minion of  the  enemy ;  there  was  no  ability  to  resist 
and  no  prospect  of  escaj)e.  There  have  been  many 
instances  of  capture  where  no  man  has  been  put  on 
board,  as  in  ships  driven  on  shore  and  into  port. 
I  remember  particularly,  a  famous  case  of  a  British 
vessel,  armed  with  two  swivels,  which  took  a  French 
privateer  row-boat  from  Dunkirk.  Having  only 
three  men  on  board,  and  only  armed  with  the 
swivels,  she  was  afi^aid  to  board  the  row-boat, 
which  was  full  of  men  armed  mth  muskets  and 
cutlasses — but  by  the  terror  of  her  swivels  she  com- 
pelled their  submission,  and  obliged  them  to  go 
into  the  port  of  Ostend,  then  the  port  of  an  ally, 
she  following  them  all  the  way  at  a  proper  dis- 
tance."^ 

A  privateer,  finding  enemy's  property  on  board  a 
neutral  vessel,  put  two  men  on  board,  and  the  mas- 
ter of  the  vessel  promised  to  proceed  into  a  port  of 
the  captain,  without  resistance  to  the  force  put  in  his 
possession.  It  was  held  that  the  capture  was  suffi- 
cient, as  against  the  claim  of  another  privateer  of  dike 
commission  as  the  first,  who  captured  the  vessel  on 
finding  her  proceeding  to  the  poii;  of  an  enemy.^ 

"  Though  the  privateer,"  said  Lord  Stowell,  "  had 
no  right  to  compel  such  an  engagement,  if  the  neu- 

'  The  Hercules,  ubi  sup. ;  La  Esperanza^  1  Haggard,  91. 
'   The  Resolution,  G  Rob.,  13. 


CAPTUEES.  193 

tral  master  voluntarily  promised  to  go  into  the  Brit- 
ish port,  without  more  force  being  put  upon  him, 
I  am  of  opinion  that  the  act  of  seizure,  under  such 
circumstances,  would  be  fully  sufficient  in  law  to 
constitute  a  capture.  The  engagement  being  made, 
the  neutral  nation  sustains  no  injury  from  it,  and  it 
is  fully  competent  for  the  master  of  the  privateei- 
to  act  under  it.  It  is  a  mere  question  of  prudence, 
whether  he  will  trust  to  the  word  of  the  neutral 
master,  or  whether  he  will  take  the  more  effectual 
precaution  of  putting  an  adequate  force  on  board." 
But  if  one  privateer  takes  a  vessel,  and  afterward 
abandon  her,  and  then  another  takes  the  same  ves- 
sel, the  last  seizor  is,  in  law,  the  only  captor,  and  the 
act  of  a  commander  in  relinquishing  that  which 
would  otherwise  have  been  good  prize,  to  himself 
and  his  crew,  is  binding  upon  the  interests  of  all 
under  him.  Commenting  upon  the  circumstances 
of  a  case  like  this.  Lord  Stowell  says :  "  As  it  is  im- 
possible that  the  claims  should  coexist,  the  court  is 
bound  to  decide  upon  them  according  to  their  legal 
merits,  which  must  depend  upon  this  question — 
which  of  them  was  the  actual  captor  ?  That  is,  not 
only  who  was  the  person  by  whom  the  seizure  was 
actually  made,  but  which  is  the  party  legally  enti-  * 
tied  to  the  character  of  captor ;  for  there  may  be 
many  successive  caj^tors,  but  only  one  can  be  le- 
gally entitled,  as  captor,  to  the  benefit  of  the  prize. 
If  a  captor  dismisses  what  he  has  seized  upon,  the 
interest  of  himself  and  all  under  him  is  concluded 
by  this  act,  and  the  same  vessel  lies  open  to  seizure 
by  any  other  captor  who  may  exercise  a  similar  dis 
cretion.'" 

'  The  Diligentia,  1   Dod.,  404 ;  vide  also  The  Woodhridge.  i 
Haggard,  74.  13 


194 


CAPTUEES. 


Liability   for 
mistakes   in 
engagements 
of  friendly 
vessels. 


Lawful    cap- 
tures can  only 
be   made   by 
public  armed 
vessels  or  pri- 
vate armed 
vessels  com- 
missioned. 


An  officer  placed  in  possession  of  a  vessel  cap- 
tured by  a  national  vessel,  by  the  captor,  may  not 
be  dispossessed  by  tlie  officer  of  anotLer  national 
vessel  for  the  purpose  of  enabling  the  latter  to 
make  a  capture  for  his  own  use  and  benefit.^ 

If  a  neutral  vessel  be  captured  by  a  superior 
force,  and  a  small  force  be  placed  on  board  her 
with  a  prize-master  to  carry  her  into  port,  it  is  not 
the  duty  of  the  master  and  crew  of  the  captured 
vessel  to  attempt  to  effect  a  rescue,  for,  by  doing 
so,  they  subject  the  vessel  to  condemnation,  which 
would  otherwise  be  entitled  to  restitution.^ 

If  two  armed  ships  should  meet  upon  the  ocean, 
and  under  mutual  mistake,  and  without  any  want 
of  reasonable  care,  should  go  into'  an  engagement, 
neither  would  be  liable  to  the  other  for  any  injury 
re-^ultina;  from  the  combat.  But  if  an  attack  were 
wanton,  or  in  consequence  of  gross  negligence  on 
tlie  part  of  either,  it  would  subject  the  offending 
party  to  liability  for  the  most  ample  remunera- 
tion.^ 

Lawful  captures  can  only  be  made  by  national 
vessels  of  war,  or  vessels  commissioned  for  that 
})urpose.  A  seizure  was  made  by  a  hired  armed 
revenue  cutter,  said  to  have  been  placed  under  the 
command  of  The  Eiiridice  man-of-war  as  a  tender. 

"  In  order  to  support  that  averment,"  said  Lord 
Stowell,  "  it  must  be  shown,  either  that  there  has 
'been  some  express  designation  of  her  in  that  char- 
acter, by  the  orders  of  the  admiralty,  or  that  there 
has  been  a  constant  employment  and  occupation, 

'  The  Eagle,  1  W.  Rob.,  245. 

■•'  The  Short  Staple  vs.  The  United  States,  9  Cranch,  55. 

'  The  Mariamm  Flora,  3  Masou,  116. 


CAPTURES.  195 

in  a  manner  peculiar  to  tenders,  equivalent  to  an 
express  designation,  and  sufficient  to  impress  that 
character  upon  her.  The  former  species  of  proof 
would  undoubtedly  be  most  desirable.'" 

In  another  case,  a  capture  was  made  by  a  rev- 
enue cutter,  which  had  been  fitted  out  as  a  tender 
by  the  captain  of  a  man-of-war,  and  put  in  com- 
mand of  a  midshipman,  and  manned  by  a  crew  from 
the  man-of-war,  but  without  any  commission  or  or- 
der from  the  admiralty.^ 

"It  is  not  to  be  maintained,"  says  Lord  Stowell, 
in  his  opinion  in  this  case,  "  that  an  officer,  by  put- 
ting his  men  on  board,  can  constitute  a  ship  to  be  a 
part  of  the  navy  of  Great  Britain.  Such  a  chtirac- 
ter  is  not  to  be  impressed  without  the  intervention 
of  some  public  authority.  If  the  contrary  could  be 
held,  this  must  follow,  that  an  officer  of  a  large  ship 
might  form  out  of  these  tenders  as  many  ships  of 
war  as  he  pleased  —  he  might  comp<»>;e  a  fleet. 
Whatever  may  have  been  the  case  in  remote  sta- 
tions— where  the  principal  persons  in  command 
must  necessarily  be  intrusted  with  a  greater  lati- 
tude of  discretion — at  home,  where  an  officer  has  it 
in  his  power  instantly  to  refer  to  the  admiralty, 
the  case  is  very  different." 

Unless  the  commission  so  granted  by  the  com- 
mander, be  afterward  confirmed  by  the  admiralty, 
the  prize  is  condemned  as  a  droit  of  admiralty. 

In  cases  however  of  boats  belonging  to  men-of-  Capture  by 

-.  1  T     •  iY»      ,  •  .  T        1  bo3,ts  belong- 

war,   and  employed  in  enecting  a  capture,   Lord  mg  to  men-of- 
Stowell  said :  "  The  court  would  certainly  be  dis-  ^'^''' 
posed  to  extend,  as  far  as  it  could,  with  propriety, 

»  The  Charlotte,  5  Rob.  '  The  Melomane,  5  Rob.,  50. 


196 


CAPTIJEES. 


to  sMpR  of  war,  tlie  benefit  of  captures  made  by 
their  boats  acting  distinctly  in  that  capacity. 
There  must  be  situations  in  which  the  captures 
could  not  otherwise  be  made,  and  many  considera- 
tions of  convenience  require  that  they  should  be 
allowed  to  take,  in  whatever  manner  their  judg- 
ments may  deem  expedient,  according  to  the  cir- 
cumstances of  the  case,  either  by  their  whole  force, 
or  by  a  part  detached  on  that  particular  service. 
The  court  would  therefore  not  be  disposed  to  nar- 
row the  legal  effect  of  the  operation  of  their  boat's 


crew."^ 


Restitution  no      The  voluntar\'  restitution  of  a  prize,  does  not  bar 

bar  to  second  ,        .  -',  .  .  .,t  ,i 

capture  a  second  seizure  by  other  parties,  either  on  the  sani" 

or  on  other  evidence,  but  such  second  capture  is 
made  at  the  peril  of  being  subjected  to  costs  and 
damages  as  made  against  the  presumption  of  ille- 
gality resulting  from  the  first  restitutioiL'^ 

A  ship,  although  incapable  of  going  out  upon  a 
cruise,  may  nevertheless,  make  an  effectual  capture 
by  her  boats. 

"  It  is  not  to  be  said,"  says  the  learned  court,  in 
a  case  in  which  this  question  arose,  "  that  because 
the  ship  was  incapable  of  going  out  on  a  cruise, 
that  therefore  she  could  not  make  a  seizure  in  port. 
She  had  arms  which  she  could  stretch  out  for  such 
a  purpose.  She  had  her  boats,  which  might  be 
employed  on  a  service  of  this  kind.  Is  the  court 
in  every  case,  to  enter  upon  a  consideration  of  the 
exact  state  and  condition  of  the  ship  by  which  a 

'  The  Charlotte^  ubi  supra ;  vide  also  The  Donna  Barbara,  2 
Haggard,  373. 

'  The  Mercarius,  1  Rob.,  80 ;   vide  also  The  Woodhridge,  1 

Hagg;ird,  74. 


CAPTURES.  197 

selzui'e  is  effected.  Suppose  the  vessel  is  in  dock 
and  undergoing  repairs,  the  circumstance  would 
not  suspend  the  right  of  the  officei'  in  conmiand  of 
h«r,  to  act  by  himself  and  men,  in  boats.  The 
seizui-e  may  be  legally  effected  by  means  of  boats, 
or  indeed,  without  them,  by  a  mere  summons  to 
the  parties."^ 

A  huvful  capture  may  be  made  by  a  ship  em-  Jjre^nlay^^be 
ployed  in  the  convoy  of  merchantmen,  provided  it  ^^^^  ^y  ^^^^ 
is  done  without  a  desertion  of  the  convoying  duty,  convoy. 

Upon  this  question,  the  rule  is  thus  stated  l)y 
Lord  Stowell ;  "  The  first  and  great  object  of  the 
attention  of  an  officer  appointed  to  a  service  of  this 
kind,  is  the  care  of  his  convoy.  He  is  not  at  liber- 
ty to  desert  it  for  the  purpose  of  acquiring  any 
ad\"antage  to  himself,  nor  is  he  to  volunteer  any 
attack  upon  the  enemy,  if  it  takes  him  away  from 
his  first  great  duty.  But,  as  far  as  it  is  consistent 
with  that  duty,  he  may  pursue  his  own  interest, 
and  may  attack  and  annoy  the  enemy,  in  any  way 
that  may  appear  to  him  advantageous.  He  may 
capture  the  ships  and  goods  of  the  enemy,  provided 
he  does  not  withdi'aw  himself  from  the  duty  of 
protecting  the  vessels  under  his  care,  and  may  tfike 
the  benefit  of  prizes  which  he  has  the  good  fortune 
to  make.  ■ 

There  is  no  pretence  for  saying,  that  a  convoying 
ship  may  not  legally  and  effectually  make  a  prize 
as  well  as  any  other  of  his  majesty's  ships — nor  is 
there  more  objection  in  the  case  of  a  convoying  ship 
to  constructive  than  to  actual  capture.  A  convoy- 
ing ship  is  no  more  disabled  from  rendering  assist- 

'  The  Charlotte,  1  Dodson,  220. 


198  CAPTUEES. 

ance  to  others,  than  from  making  an  actual  captiin^ 
herself.  The  service  on  which  she  is  employed 
makes  no  disqualification  in  either  case,  supposing 
only  that  the  capture  can  be  effected  without  any 
breach  of  the  principal  duty,  the  care  of  the  con- 
voy,"^ 

^rTabbfor  Where  a  wrong  is  committed  in  a  capture,  the 
injury  result-  wrong-cloer  is  the  only  person  who  is"  responsible 
ture.        ^     for  the  injuries  resulting  therefrom. 

After  the  cessation  of  hostilities  between  the 
United  States  and  Great  Britain,  in  1*783,  but  before 
the  fact  of  such  cessation  had  come  to  the  knowl- 
edge of  parties  in  the  Vnited  Stsites,  The  Me7ito?% 
an  American  ship,  was  destroyed,  while  off  the 
Delav/are,  by  The  Centurion  and  Vidture^  two  Brit- 
ish ships-of-war,  part  of  the  squadron  of  Admiral 
Digby.  In  1799,  this  was  made  the  subject  of  a 
suit  against  Admiral  Digby,  in  the  admiralty  court 
in  Eno'land. 

In  rendering  judgment  in  this  case.  Lord  Stowell 
says :  "  It  is  an  entire  novelty  in  a  prize  cause,  to 
call  to  adjudication,  not  the  immediate  alleged 
wrong-doer,  but  a  person  who  was  neither  present 
at,  nor  coo-nizant  of  the  transaction,  and  who  is  to  be 
affected  in  responsibility  merely  on  this  ground — 
that  the  person  alleged  to  have  done  the  injury  \f  as 
acting  under  his  general  authority ;  for,  as  to  par- 
ticular orders  applied  to  this  transaction,  it  is  not 
pretended  that  any  were  given,  or  could  be  given. 
He  was  only  the  admiral  on  the  station,  and  the 
ships  which  committed  the   alleged  outrage,  were 

'  The  Gnlen,  Dodson,  429-440. 


CAPTURES.  199 

under  liis  general  command,  but  at  a  great  distance 
from  liim. 

"  This  is  tlie  first  time  tliat  an  attempt  has  been 
made  in  a  prize  cause,  to  pass  over  the  person 
from  whom  the  alleged  injury  has  been  received, 
and  to  fix  it  on  another  person,  on  the  ground  of  a 
remote  and  consequential  responsibility.  The  actual 
wrong-doer  is  the  man  to  answer  in  judgment.  To 
him  responsibility  is  attached  in  this  court.  He 
may  have  other  persons  responsible  over  to  him, 
and  that  responsibility  may  be  enforced.  As,  for 
instance,  if  a  captain  made  a  wi'ong  seizure,  under 
the  express  orders  of  the  admiral,  that  admiral  may 
be  made  responsible  in  the  damages  occasioned  to 
the  captain  by  that  improper  act ;  but  it  is  the 
constant  practice  of  this  court  to  have  the  actual 
wrong-doer  the  party  before  the  comt ;  and  every 
man  must  see  the  propriety  of  that  practice,  be- 
cause, if  the  court  was  once  to  open  the  door  to 
complaints  founded  on  a  remote  and  consequential 
responsibility,  where  is  it  to  stop  ?  If  a  monition 
is  to  go  against  the  admiral  for  not  issuing  his 
revocatory  orders,  a  monition  might,  in  like  man- 
ner, go  against  the  lords  of  the  admiralty  for  a  simi- 
lar neglect,  or  against  the  secretary  for  not  issuing  a 
similar  direction  to  the  lords  of  the  admiralty  ;  and 
these  persons  might  be  made  parties  in  a  prize  cause, 
and  called  upon  to  proceed  to  adjudication. 

"  If  the  legal  responsibility  is  to  be  shifted  from 
the  actual  captor,  to  whom  is  the  claimant  to  look  ? 
Where  is  he  to  find  the  responsibility  in  the  chain 
of  persons  who  may  be,  somehow  or  other,  involved 
in  the  different  stages  of  the  transaction  ?  Where 
is  he  to  find  the  wrong-doer,  if  you  once  take  olf 


200 


CAPTXJEES. 


that  character  from  the  person  who  immediately 
commits  the  injury  ?  Where  is  he  to  resort,  if  j(m 
take  from  him  that  easy  and  direct  resort,  wil\- 
which,  in  the  present  understanding  of  the  law,  he 
is  provided  ?  I  am  most  clearly,  on  this  ground,  of 
opinion,  that  Admiral  Digby  alone  cannot  be  com- 
pelled to  proceed  to  adjudication  under  this  moni- 
tion. The  loss  which  the  claimant  has  sustained  is 
extremely  to  be  lamented  ;  but  I  cannot  give  relief 
on  mere  grounds  of  humanity. 

"  Humanity  is  only  the  second  virtue  of  courts 
Justice  is  unquestionably  the  first ;  and  justice 
would  be  grossly  violated  by  providing  relief  for 
one  innocent  man  at  the  expense  of  another,  who  is 
not  legally  subject  thereto."^ 

Sma^S"^  iv       Vindictive  damages  are  never  given  in  cases  of 

en  only  in  ex- illegal   Capture,   unless   the   misconduct   has   been 

causes. '^^^^     gross,    and  wholly  without   excuse   or   palliation. 

^luch  indulgence  is  extended  to  errors,  and  even 

to  improprieties  of  captors,  where  no  malignity  or 

cruelty  is  justly  chargeable.^ 

If  a  captor  destroy  a  ship  which  is  protected  by 
the  license  of  his  government,  he  or  his  government 
is  responsible  for  the  loss  occasioned  by  such  de- 
struction .'^ 

But  a  captor  is  protected  by  the  com-t,  who  a^ts 
in  good  faith  in  pursuance  of  his  rights,  in  an  ig- 
norance, honest  and  invincible  on  his  part,  of  a  for- 

'  The  Mentor,  1  Rob.,  180;  vide  also  Thp  Faderlandt,  5  Rob., 
123. 

^  The  Lively  and  cargo,  1  Gall.,  29  ;  The  Anne,  3  Wheat.,  435  ; 
The  George,  1  Mason,  24. 

■'  The  Felicit;/,  2  Dod.,  381 ;   The  Aclcenn,  ib.,  52. 


CAPTURES.  201 

eign  fact,  not  governed  by  Lis  own  domestic  law, 
with  wliicli  lie  is  unavoidably  unacquainted  till  it 
is  actually  communicated  to  him.^ 

It  is  a  general  rule  that  the  captor  takes  liis  ^J'^^^g.JJ^J^^*^ 
prize  cum  onere.  but  the  onus  must  be  one  which  is  immediate  in- 

T    .    T  ,..,,.  ,         ,  cumbrauces 

immediately  and  visibly  incumbent.  only. 

Thus,  if  a  captor  take  the  cargo  of  an  enemy  on 
board  the  ship  of  a  friend,  he  takes  it  subject  to 
the  liability  for  freight  due  to  the  owner  of  the 
ship,  because  by  the  general  law  of  merchants,  the 
cargo  in  the  possession  of  the  owner  is  subject  to 
that  liability,  independent  of  contract.  But  to 
claims  which  rest  in  action  merely,  such  as  bottom- 
ry bonds,  liens  by  contract,  etc.,  the  rule  has  no 
application — for  these  are  claims  which  no  admiral- 
ty court  can  examine  with  effect.  The  captor  has 
no  access  to  the  original  private  understandings  of 
the  j)arties  by  whom  such  contracts  are  made,  and 
it  is  therefore  held  that  he  should  not  be  affected 
by  them.  Several  cases  have  been  decided,  involv- 
ing this  principle,  relating  to  fr'eight,  liens,  etc., 
both  in  England  and  the  United  States.^ 

The  captor  must  send  his  prize  to  some  conveni-  Prize  must  be 
ent  port  for  adjudication.     Although  some  latitude  vt^ent  port' 
is  necessarily  allowed  in  the  selection  of  the  port, 
the  captor  cannot  exercise  an  arbitrary  discretion ; 
it  must  be  a  convenient  port,  and  it  is  the  duty  of  Rule  as  to  this. 

'  The  John,  2  Dodson,  339. 

'  The  Tohago,  5  Rob.,  218;  The  Diana,  ib.,  67;  The  TwU- 
hieg  Rvict,  5  Rob.,  82  ;  The  Marianna,  6  Rob.,  24 ;  The  ConH'tn- 
cia  Harlasten,  1  Edw.,  2G2  ;  The  Ann  Green,  1  Gall.,  293 ;  The 
Francis,  8  Cranch,  418. 


202 


CAPTTJEES. 


Duty  on  arri- 
val. 


To  proceed 
forthwith   to 
adjudication. 


the  captor  to  regard  tlie  convenience  of  the  claim- 
ant in  proceeding  to  adjudication.-^ 

Where  it  is  not  possible  to  bring  the  enemy'^J 
property  into  port,  and  it  is  beyond  all  doubt  the 
property  of  the  enemy,  the  captor's  duty  is  to  de- 
stroy it ;  where  a  reasonable  doubt  exists  as  to  the 
character  of  the  property,  the  more  safe  and  proper 
course  is  to  dismiss  it.^ 

Until  an  adjudication,  captors  have  no  right  to 
convert  the  property,  nor  even  to  break  bulk.  In 
cases,  however,  of  an  overruling  necessity,  as  in  the 
case  of  a  capture  of  perishing  property  in  a  dis- 
tant part  of  the  world,  the  rule  is  necessarily  re- 
laxed, and  the  property  may  be  sold.^ 

On  anival  at  the  port,  it  is  the  duty  of  the  cap- 
tors forthwith  to  deliver,  upon  oath,  into  the  regis- 
try of  the  court,  all  papers  found  on  board  the  cap- 
tured ship.* 

It  is  also  their  duty  to  bring  on  the  prize  crew, 
or  at  least  the  master  and  j)rincipal  officerh*,  with 
the  prize,  for  adjudication.^ 

With  all  practicable  celerity,  the  captors  are 
bound  to  proceed  to  adjudication.  Demurrage, 
damage  and  compensation  have  been  frequently 
awarded  on  the  ground  of  unreasonable  delays  in 
the  proceedings  of  the  captors.® 

'  The  Wilhclmshurg,  5  Rob.,  143;  The  Washington,  6*  Rob., 
275;   The  Lively^  1  Gall.,  318. 

*  The  Felicity,  ubi  supra. 
'  L'E'jU,  6  Rob.,  220. 

"  The  Diana,  2  Gall.,  95. 

*  The  Bothne'i  and  the  Janstoff,  2  Gall.,  88. 

*  The  Madonna  del  Bursa,  4  Rob.,  169;  The  San  Juan  Bat- 
tista  and  The  Furissima  Conception,  5  Rob.,  38  ;  The  Corier  Man- 
tima,  1  Rob.,  287  ;   The  Sw'annn,  6  Rob.,  51. 


JOIlSrT-CAPTURE.  203 

"  Unless  the  captor,"  says  Lord  Stowell,  in  tlie 
first  case  here  cited,  "can  exculpate  himself  with 
respect  to  the  delay  in  this  matter,  he  is  guilty  of 
no  inconsiderable  breach  of  duty.  It  would  be 
highly  injurious  to  the  commerce  of  other  countries, 
and  disgraceful  to  the  jurisprudence  of  our  own,  if 
any  persons,  commissioned  or  non-commissioned, 
could  lay  their  hands  on  valuable  foreign  ships 
and  cargoes,  without  bringing  such  act  to  judicial 
notice  with  promptitude." 

It  is  the  duty  of  the  captor  immediately  to  com-  Prize-master 

.       -,  •        ;       ,  1  n  '  and  crew. 

mit  tne  prize  to  the  care  oi  a  competent  prize-mas- 
ter and  crew,  not  for  the  reason  that  the  prize  or 
original  crew,  when  left  on  board  in  the  case  of  a 
seizure  of  a  citizen  or  neutral,  are  released  from 
their  duty  without  the  assent  of  the  master,  but 
because  the  captured  crew  are  not  subject  to  the 
authority  of  the  caj)tor's  oificer.-^ 

The  right  to  capture  enemy's  property  on  board 
a  neutral  ship,  and  neutral  property  on  board  an 
enemy's  ship,  has  been  the  subject  of  discussion  by 
the  elementary  writers,  and  has  frequently  been 
passed  upon  by  the  courts  both  of  the  United 
States  and  Great  Britain. 

Although  a  subject  connected  with  that  of  cap- 
ture, it  may  be  more  properly  reviewed  when  we 
come  to  consider  the  effect  of  war  upon  the  com- 
merce of  neutrals. 

Besides  the  capture  de  facto,  which  we  have  been 
considering,  there  is  another  capture,  by  construc- 
tion, or  joint-capture.     Joint-captors  are  those  who, 

'  fhe  Eleanor,  2  Wheat.,  345. 


204  JOINT-CAPTUEE. 

"not  having  contributed  actual  service,  are  still  sup- 
posed to  have  rendered  a  constructive  assistance, 
either  by  conveying  encouragement  to  the  captors, 
or  intimidation  to  the  enemy." 

Who  are  entitled  to  be  considered  joint-captors 

is  a  question  of  exceeding  interest  and  importance. 

Like  most  other  questions  in  the  law  of  nations, 

Doctrine  of     ^^g  affcctinsr  Commercial  interests  duiins:  war,  it  will 

constructive  '-'  . 

assistance  dis-  be  fouud  uowhcre  so'  learnedly  considered  and 
illustrated  as  by  the  invaluable  opinions  of  that 
great  luminary  of  this  law — Lord  Stowell. 

He  says '}  "  The  benefit  of  prize  is  given  to  the 
takers,  by  which  term  are  naturally  to  be  under 
stood  those  wJio  actually  tahe  possession,  or  those 
.aifording  an  actual  contribution  of  effort  to  that 
event ;  either  of  these  persons  is  naturally  included 
under  the  denomination  of  taTcers,  but  the  courts  of 
law  have  extended  the  term  takers  to  another  de- 
scription of  persons ;  to  those  who,  not  having  con- 
tributed actual  service,  are  still  supposed  to  have 
rendered  a  constructive  assistance,  either  by  convey- 
ing encouragement  to  the  captor,  or  intimidation  to 
the  enemy.  Capture  must  therefore  be  divided  into 
capture  de facto  and  capture  by  construction. 

"Capture  by  construction  must  remain  on  the 
terms  the  law  has  already  recognized,  and  not  a 
new  unauthorized  construction — for  as  the  }vord 
has  already  traveled  a  considerable  way  beyond 
the  meaning  of  the  act  of  Parliament,  the  disposi- 
tion of  the  court  will  be,  not  to  extend  it  still  fur- 
ther, but  to  narrow  it  and  bring  it  nearer  to  the 
terms  of  th(3  act  than  has  been  done  in  former  cases. 

'  The  Vryheid,  -J  Rob.,  21.  •   . 


JOINT-CAPTTJEE.  205 

The  case  of  the  Mars  is  a  strong  authority  in  point, 
in  which  the  claim  to  joint-capture  was  not  allowed 
to  ships  not  in  company,  but  stationed  at  different 
outlets  to  watch  for  the  enemy,  who  were  known  to  be 
under  the  necessity  of  passing  through  one  of  them. 

"  In  all  cases,  the  onus  p'obandi  lies  on  those  set- 
ting up  the  construction,  because  they  are  not  per- 
sons strictly  within  the  words  of  the  act,  but  let  in 
only  by  the  interpretation  of  those  having  authority 
to  interpret  it.  It  lies  with  the  claimants  in  joint- 
capture,  therefore,  either  to  allege  some  cases  in 
which  their  construction  has  been  admitted  in  for- 
mer instances,  or  to  show  some  principle  in  their 
favor  so  clearly  recognized  and  established  as  to 
have  become  almost  a  first  principle  in  cases  of  this 
nature. 

"  The  being  in  sight,  generally,  and  with  some  few  Vessels  in 
exceptions,  has  been  so  often  held  to  be  sufficient 
to  entitle  parties  to  be  admitted  joint-captors,  that 
where  that  fact  is  alleged,  we  do  not  call  for  partio 
ular  cases  to  authorize  the  claim — but  where  that 
circumstance  is  wanting,  it  is  incumbent  on  the 
party  to  make  out  his  claim,  by  an  appeal  to  de- 
cided cases,  or  at  least  to  principles,  which  are  fairly 
to  be  extracted  from  these  cases." 

The  Vestal  frigate  claimed  to  share  in  the  pro- 
ceeds of  the  capture  of  the  Dutch  fleet  by  Captain 
Trollope,  in  October,  1798,  on  the  ground  that  al- 
though not  taking  part,  or  even  in  sight  of  the  en- 
gagement, she  was  one  of  the  ships  under  the  cap- 
tor's command  on  that  station,  and  was  only  absent 
on  the  occasion,  in  consequence  having  been  dis- 
patched by  him  on  a  special  mission. 

In   disallowing   the   claim.  Lord   Btowell   said: 


2<^6  JOrNT-CAPTUEE. 

"There  are  no  cases  cited  as  Ibeing  directly  in 
point,  but  tlie  case  of  The  Senor  San  Josef  (House 
of  Lords,  May  4,  1Y84),  Las  been  alluded  to.  That 
is  a  case  which  I  perfectly  recollect — having  been 
concerned  in  arguing  it — but  it  was,  in  its  principal 
circumstances,  entirely  different  from  the  present 
case.  That  was  a  case  of  two  vessels  detached  from 
the  fleet,  under  the  command  of  Admiral  Pigot,  in 
the  West  Indies,  to  chase  two  strange  ships  appear- 
ing in  sight,  the  fleet  bearing  up  all  the  time  as  fast 
as  possible  to  support  them.  The  chasing  vessels 
took  the  two  ships  first  appearing,  and  also  a  third, 
on  which  the  dispute  arose.  There  was  much  con- 
trariety of  evidence  whether  the  fleet,  which  was 
continuing  to  sail  in  the  same  direction,  was  not  up 
and  in  sight,  and  the  chief  doubt  arose  owing  to  the 
night  coming  on,  for  if  it  had  been  day,  the  fleet 
would  clearly  have  been  in  sight,  and  it  was  at  all 
events  known  to  be  at  hand,  and  ready  to  have 
given  any  support  that  might  be  wanting.  Under 
these  circumstances,  the  Court  of  Appeals  aflfirmed 
the  sentence  of  the  court  below,  pronouncing  for 
joint-capture — and  in  that  sentence  it  is,  I  believe, 
true,  as  it  has  been  stated  by  the  counsel,  that  some 
mention  was  made  of  the  words  joint-enterprise. 
But,  taking  the  case  together,  it  can  by  no  means 
be  said  to  go  the  length  of  the  present  claim. 

"  As  far  as  cases  go,  then,  there  is  an  entire  failure 
of  authority  on  the  part  of  The  Vestal.  But  the 
usage  of  the  navy  has  been  resorted  to,  and  a  case 
has  been  cited  of  The  Audacious,  one  of  the  fleet 
under  command  of  Lord  Howe,  being  permitted  to 
share  in  the  victory  of  the  first  of  June,  1794. 

"  It  is  admitted,  and  it  is  certainly  true,  that  the 


JOINT-CAPTURE.  207 

practice  of  the  navy,  in  opposition  to  the  words  of 
the  act  of  Parliament,  or  a  proclamation,  or  to  the 
established  law,  cannot  weigh  or  be  of  any  author- 
ity. 

.  "  At  the  same  time,  the  court  would  be  extremely 
unwilling  to  break  in  on  any  settled  and  received 
notions  of  the  navy,  or  to  disturb  a  practice  gener- 
ally prevailing  among  themselves.  But  the  case 
cited  is  different  from  the  present.  The  Audacious 
had  actually  engaged  in  the  enemy's  fleet,  and  had 
separated  only  in  chase  of  one  of  their  ships. 

"  The  Canada,  another  case  which  has  been  men- 
tioned, chased  from  the  fleet,  on  signal,  on  the  prize 
coming  in  sight.  T/ie  Laivestoff,  which  is  another 
case  stated  to  have  happened  in  the  Mediterranean, 
was  not  detached  from  the  Mediten'anean  fleet  till 
after  the  chase  had  actually  begun. 

"The  circumstances,  therefore,  materially  distin- 
guish these  cases  from  the  present;  and  I  am  at 
liberty  to  say,  that  no  case  in  point  or  authority 
has  been  produced.  Is  there,  then,  any  admitted 
principle  'I  The  gentlemen  have  resorted  to  the 
general  principle  of  common  enterprise,  and  it  has 
been  contended  that,  where  ships  are  associated  in 
a  common  enterprise,  that  circumstance  is  sufficient 
to  entitle  them  to  share  equally  and  alike  in  the 
prizes  that  are  made  ;  but  certainly  that  cannot  be 
maintained  to  the  full  extent  of  these  terms.  Many 
cases  might  be  stated  in  which  ships  so  associated 
would  not  share.  Suppose  a  case  that  ships,  going 
out  on  the  same  enterprise,  and  using  all  their  en- 
deavors to  effectuate  their  purpose,  should  he  sepa- 
,  rated  by  storm  or  otherwise,  who  would  contend 
that  they  should  share  in  each  other's  captm^es  I 


208  JOINT-CAPTUEE. 

There  is  no  case  in  wMcli  sucli  persons  have  been 
allowed  to  stare  after  separation,  being  not  in  sight 
at  tlie  time  of  cliasing.  It  cannot  be  laid  down  to 
that  extent ;  and,  indeed,  it  wonld  be  extremely  in- 
commodious that  it  should.  Nothing  is  more  diffi- 
cult than  to  say  precisely  where  a  common  enterjDrise 
begins.  In  a  more  enlarged  sense,  the  whole  navy  of 
England  may  be  said  to  be  contributing  in  the  joint- 
enterprise  of  annoying  the  enemy.  In  particular 
expeditions,  every  service  has  its  divisions  and  sub- 
di\dsions.  Operations  are  to  be  begun  and  con- 
ducted at  different  places.  In  the  attack  of  an 
island,  there  may  be  different  ports,  and  different 
fortresses,  and  different  ships  of  the  enemy  lying 
before  them. 

"  It  may  be  necessary  to  make  the  attack  on  the 
opposite  side  of  the  island,  or  to  associate  other 
neighboring  islands  as  objects  of  the  same  attack. 
The  difficulty  is,  to  say  where  the  joint-enterprise 
actually  begins.  Again,  is  it  every  remote  contri- 
bution, given  with  intention  or  without  intention, 
that  is  sufficient  ?  I  apprehend  that  is  not  to  be 
maintained.  An  actual  service  may  be  done  with- 
out intention ;  or  there  may  be  a  general  intention 
to  assist,  and  yet  no  actual  assistance  given.  Can 
an3^body  say  that  a  mere  intention  to  assist,  with- 
out actual  assistance,  though  acted  upon  with  'the 
most  prompt  activity,  would,  in  all  cases,  be  suffi- 
cient ?  If  persons,  under  such  claims,  could  share, 
there  would  be  no  end  to  dispute.  No  captor 
would  know  what  he  was  about ;  whether,  in  every 
prize  he  made,  there  might  not  be  some  one,  iifty 
leagues  distant,  working  very  hard  to  come  up,  and 
even  acting  under  the  authority  of  the  admii'alty, 


JOIi^T-CAPTURE.  209 

to  co-operate  with  him.  In  serving  his  country, 
ever}^  captor  would  be  left  in  uncertainty,  whether 
some  person  whom  he  never  saw,  and  whom  the 
enemy  never  saw,  might  not  be  entitled  to  share 
with  him  in  the  rewards  of  his  labor.  The  great 
intent  of  prize  is  to  stimulate  the  present  contest, 
and  to  encourage  men  to  encounter  present  fatigue 
and  present  danger;  an  effect  which  would  be 
infinitely  weakened  if  it  were  known  that  there 
might  be  those  not  present,  and  not  concerned  in 
the  danger,  who  would  entitle  themselves  to  share. 

"  What  is  the  true  criterion  in  these  cases  ?  The 
being  in  sight,  or  seeing  the  enemy  accidentally  a 
day  or  two  before,  will  not  be  sufficient ;  it  must 
be,  at  the  commencement  of  the  eno;ao;ement,  either 
in  the  act  of  chasing,  or  in  preparation  for  chase, 
or  afterward,  during  its  continuance.  If  a  ship 
was  detached,  in.  sight  of  the  enemy,  and  under 
preparation  for  chase,  I  should  have  no  hesitation 
in  saying  she  ought  to  share.  But  if  she  was  sent 
away  after  the  enemy  had  been  descried,  but  before 
any  preparations  for  chase,  or  an}^  hostile  move- 
ments had  taken  place,  I  think  it  would  be  other- 
wise. There  must  be  some  actual  contribution  of 
endeavor,  as  well  as  a  general  intention." 

The  ship  Odin  ^as  captured  off  St.  Helena  by  Doctrine  of 
boats  sent  from  the  British  ship  of  war  TJie  Trusty,  assistance^ as 
A  claim  to  share  in  the  proceeds  of  the  prize  was  5]f ynd^p,.i^"te 
made  on  behalf  of  27te  Royal  Admiral,  a  private  armed  vessels. 

The  rule  laid 

ship  of  war,  on  the  ground  that  her  boats,  which  had  down. 
been  sent  out  from  the  harbor  of  St.  Helena  to  aid 
in  effecting  the  capture,  were  in  sight  when  the 
capture  was  in  fact  made  by  the  boats  from  The 
Trusty. 

14 


210  "  JOINT-CAPTURE. 

Lord  Stowell  said :  "  I  know  of  no  case  that 
would  sustain  sucli  a  claim.  The  principle  of  con- 
structive assistance  lias  been  thought  to  have  been 
carried  somewhat  far,  and  the  later  inclination  of 
courts  of  justice  has  been  rather  to  restrain  than 
extend  the  rule.  Between  private  ships  of  war  and 
king's  ships,  the  rule  of  law  has  been  always  held 
more  strictly,  and  it  has  not  been  the  doctrine  of 
ihe  admiralty  to  raise  constructive  assistance  so 
easily  between  them  as  between  king's  ships.  If 
the  competition  had  been  between  two  king's  ships, 
it  would,  in  my  opinion,  be  highly  questionable, 
whether  a  boat  so  sent  out,  could  support  a  claim 
to  share,  on  the  mere  principle  of  being  in  sight. 
There  is,  I  think,  a  very  solid  ground  of  distinction 
between  the  claims  of  a  boat  in  the  different  cases 
of  an  actual  and  a  constructive  capture.  Where  a 
boat  actually  takes,  the  ship  to  which  it  belongs, 
has  done,  bv  means  of  this  boat,  all  that  it  could 
have  done  by  the  direct  use  of  its  own  force.  «  In 
the  case  of  mere  constructive  capture,  the  construc- 
tion which  is  laid  upon  the  supposed  intimidation 
of  the  enemy,  and  the  encouragement  of  a  friend, 
from  a  ship  of  war  being  seen,  or  within  sight  of  a 
capture,  applies  very  weakly  to  the  case  of  a  boat, 
an  object  that  attracts  little  notice  upon  the  water, 
and  whose  character,  even  if  discerned  by  either 
of  the  parties,  may  be  totally  unknown  to  both'. 

"  More  unreasonable  still  would  this  be  upon 
actual  captors,  if  the  constructive  co-operation  of 
such  an  object  would  give  an  interest  to  the  entire 
ship  to  which  it  belonged.  Where  a  ship  is  in 
sight,  she  is  conceived  to  co-operate  in  the  propor- 
tion of  her  force.     But  what  room  is  there  for  such 


JOINT-CAPTURE.  211 

a  presumption  wliere  she  co-operates  only  by  tlie 
force  of  her  boat  ? 

"  I  am  of  opinion,  both  on  principle  and  author- 
ity, that  where  no  antecedent  agreement  is  proved 
to  have  taken  place,  a  vessel  lying  in  harbor,  cannot 
be  entitled  to  share  in  a  capture  made  out  of  the 
harbor,  by  the  circumstance  of  her  boat  being  merely 
in  sio;ht."^ 

The  distinction  between  public  and  private  armed  '^^  '^'®- 
ships  of  war  ^\'ith  reference  to  claims  as  joint-cap- 
tors, alluded  to  by  Lord  Stowell  in  the  case  of  The 
Odin^  is  more  distinctly  laid  down  by  him  in  an- 
other case,  in  which  the  claim  was  made  on  the  part 
of  two  privateers.  The  Larh  and  General  Coote,  to 
share  in  the  prize  of  the  public  ship  of  war  The 
Gannet?     He  says : 

"  The  rule  of  law  on  this  subject,  which  has  long 
been  established  in  this  court  and  the  Court  of  Ap- 
peals in  various  cases,  is,  that  it  must  be  shown  on 
the  part  of  the  privateers  that  they  were  construct- 
ively assisting. 

"  The  being  in  sight  is  not  sufficient  with  respect 
to  them,  to  raise  the  presumption  of  co-operation  in 
the  captui'e.  They  clothe  themselves  with  commis- 
sions of  war,  from  views  of  private  advantage  only. 
They  are  not  bound  to  put  their  commissions  in 
ase  on  eveiy  discovery  of  the  enemy,  and  therefore  P/rui?°°^°^ 
the  law  does  not  presume  in  their  favor,  from  the 
mere  circumstance  of  being  in  sight,  that  they  were 

'  The  Odin,  4  Rob.,  318;  vide  also  La  Belle  Coquette,  1  Dod., 
18;  The  Nancy,  4  Rob.,  327;  The  Vryheid,  2  Rob.,  16;  The 
,  Niemen,  1  Dod.,  16. 

-  The  Amitie,  6  Rob.,  261. 


212  JOLNT-CAPTUEE. 

tliere  witli  a  design  of  contributing,  assisting,  and 
eno-ao-iiifT  in  tlie  contest.  There  must  he  tlie  aniinvs 
capiendi^  demonstrated  by  some  overt  act,  by  som(^ 
variation  of  conduct,  wbicli  would  not  liave  taken 
place  but  with  reference  to  that  particular  object, 
and  if  the  intention  of  acting  against  the  enemy  had 
not  been  effectually  entertained." 

Again,  in  another  case,^  with  reference  to  king's 
ships,  Lord  Stowell  said : 

"  They  are  under  a  constant  obligation  to  attack 
the  enemy  wherever  seen ;  a  neglect  of  duty  is  not 
to  be  presumed,  and  therefore,  from  the  mere  cii'- 
cumstance  of  being  in  sight,  a  presumption  is  suflS- 
ciently  raised,  that  they  are  there,  animo  capiendi 
In  the  case  of  privateers,  the  law  does  not  give 
them  the  benefit  of  the  same  presumption.  Ships 
of  this  description  go  out  very  much  on  speculation 
of  private  advantage,  which,  combined  with  other 
considerations  of  public  policy,  are  undoubtedly 
very  allowable,  but  which  do  not  lead  to  the  same 
inference,  as  that  which  the  law  constructs  on  the 
known  duty  imposed  on  king's  ships.  A  privateer 
is  under  no  obligation  to  attack  all  she  meets,  but 
acts  altogether  on  views  of  private  advantage.  She 
may  not  be  disposed  to  engage  in  every  contest, 
and  therefore  the  presumption  does  not  arise  in 
any  instance,  that  she  is  present  animo  capiendi^ 

"  A  contrary  route,  if  proved,  would  defeat  the 
claim  of  a  king's  ship,  but  if  nothing  appears  on 
the  one  side  or  the  other,  as  to  that  fact,  the  mere 
presence  would,  I  think,  be  sufficient  to  entitle 
the  king's  ship  to  the  character  of  a  constructive 
captor." 

'  La  Flore,  5  Rob.,  268. 


JOINT-CAPTURE.  2 1  3 

A  case  alieady  cited/  establislies  tlie  principle, 
tliat  in  a  case  of  joint-capture,  grounded  on  tlie  be- 
ing in  sight,  it  is  necessary  that  the  claiming  vessel 
should  have  been  seen  by  the  actual  captor,  and 
aiso  by  the  captured  vessel,  one  of  v^hich  facts,  must 
be  established  by  evidence  other  than  that  of  the 
claiming  vessel,  and  the  other  by  implication  and 
necessary  inference. 

When  two  vessels  are  associated  for  the  pur-  Joint-euter- 

.  .  ■*•  prise  as  affeot- 

pose  of  effecting  a  capture,  the  continuance  of  the  ing  question  oi 

1  •  fvi    •       J.   I  •         ii  •ixi?*"j.  J.  constructive 

chase  is  sumcient  to  give  the  right  oi  joint-capture,  assistance. 
and  the  being  in  sight  at  the  time  of  the  capture  is, 
under  such  circumstances,  not  essential.^ 

It  has  been  determined  also,  that  ships  are  entit- 
led as  joint-captors,  that  have  been  in  chase  during 
the  day,  and  continuing  the  pursuit  in  a  proper 
direction,  that  is,  in  the  direction  taken  by  the 
prize,  'although  prevented  by  darkness  from  seeing 
the  actual  capture,  or  by  the  thickness  of  an  inter- 
vening fog,  or  an  interposing  headland,  at  the  mo- 
ment of  surrender,  because  the  impulse  and  im- 
pression in  the  mind  of  the  enemy  who  is  to  be  in- 
timidated, or  of  the  friend  who  is  to  be  encouraged, 
continue  in  full  force,  and  thus  supjDort  the  prin- 
ciple on  which  the  doctrine  of  constructive  assist- 
ance is  based.* 

As  to  rights  of  revenue-cutters  to  be  joint-cap- 
tors, in  a  case  involving  the  question,*  Lord  Stow- 
ell  says : 

"It  is  a  known  rule  of  law,  that  the  mere  ^^^^^''£7^ 
of  being  in  sight  would  be  sufficient  to  entitle  a  jVint-captora. 


•  ^he  Faderhndt,  5  Rob.,  120.     '  The  Forsir/hcid,  3  Rob.,  316. 
UFtoih;  2  Dodson,  106.  "  The  Bellona,  1  Edw.,  64. 


214  JOLNT-CAPTUKE. 

king's  sliip,  l^ecause  in  ships  fitted  out  by  the  stat'^, 
for  the  exj^ress  purpose  of  cruising  against  tlu 
enemy,  the  animus  capiendi  is  always  presumed  — 
but  this  presumption  does  not  extend  to  privateer  . 
In  the  one  case,  the  duty  is  obligatory,  in  the  other 
where  private  individuals  make  captures  at  theii' 
own  expense,  they  are  engaged  in  a  mere  commei'- 
cial  speculation,  to  be  carried  into  effect  by  military 
means,  but  dependent  upon  their  own  will  in  the 
particular  acts  and  exercises  of  their  authority. 
Although  they  are  authorized  they  are  not  com- 
manded to  capture.  It  is  a  matter  in  which  they 
are  left  to  their  own  discretion.  But  these  vessels 
employed  in  the  service  of  the  revenue,  are  a  class 
of  ships  of  an  anomalous  kind,  j)artaking  in  some 
degree  of  both  characters.  They  belong  to  the 
government,  and  are  maintained  at  the  public  ex- 
pense, but  not  for  the  purpose  of  making  captures 
from  the  enemy.  On  the  other  hand,  they  have 
commissions  of  war,  but  these  are  private  commis- 
sions, which  impose  no  peculiar  duties  upon  them. 
They  are  not  bound  to  attack  and  pursue  the  ene- 
my more  than  other  private  ships  of  war — and  they 
are  likewise  unfavorably  distinguished  in  this  re- 
spect— that  the  advantages  of  capture  are  not  held 
out  to  them,  the  interest  in  all  captures  made  by 
them  being  reserved  to  the  crown.  , 

"  Primarily,  their  duty  is  to  protect  the  revenue, 
and  the  capture  of  the  enemy's  vessels  is  engrafted 
on  the  original  character.  All  they  derive  from 
these  commissions,  is,  an  authority  to  attack  the 
enemy,  in  addition  to  other  authorities  that  belong 
to  their  original  and  proper  employment;  on  princi- 


JOINT-CAPTUKE.  215 

pie,  therefore,  they  can  only  be  considered  as  private 
ships  of  war. 

"  They  are  under  no  injunction  to  cruise  against 
the  enemy,  and  are  employed  generally  for  fiscal 
purposes.  It  is  true  that  there  is  the  addition  of  a 
military  commission  in  time  of  war ;  but  that  does 
not  designate  them  anew,  it  merely  j)uts  them  on  a 
footing  with  other  private  ships  of  war." 

A  private  ship  of  war  made  claim  as  joint-cap- 
tors to  share  in  the  prize  of  a  valuable  Spanish 
galleon,  taken  by  The  Triton  frigate,  on  the  ground 
that  she  was  not  in  sight  at  the  time  of  the  capture, 
but  had  placed  herself  in  such  a  position  as  to  be 
effectual  in  cutting  off  the  retreat  of  the  galleon 
into  a  fi'iendly  port.^ 

Lord  Stowell  said  :  "  The  beins:'  in  sisiht  will  not 
be  sufficient;  it  would  open  the  door  to  very  fre- 
quent and  practicable  frauds,  if,  by  the  mere  act  of 
hanging  on  upon  his  majesty's  ships,  to  pick  up  the 
crumbs  of  the  captures,  small  privateers  should  be 
held  entitled  to  an  interest  in  the  prize  which  the 
king's  ships  took." 

A  Spanish  register  ship  of  eight  hundred  tons 
and  twenty-six  guns  (twelve-pounders),  was  taken 
on  the  29th  of  November,  1799,  by  The  Hussat\ 
Captain  Salter.  The  Resolution^  a  privateer  of 
sixteen  six-pounders,  put  in  a  claim  of  joint-capture, 
and  it  was  allowed,  on  the  ground  of  highly  meri- 
torious gallantry  and  perseverance  in  keeping  the 
prize  in  chase,  from  the  5  th  to  the  20th  of  Novem- 
ber; of  having  fought  her  several  times,  notwith- 

'  The  Santa  Brigada,  3  Rob.,  52. 


2  1 1)  JOINT-CAPTURE. 


standing  tile  great  disparity  of  force;  and  having 
kept  constantly  up  with  her,  burning  false  lights 


etc.,  during  the  night,  to  attract  the  notice  and  as- 
sistance of  some  British  cruiser. 

In  a  case  where  it  appeared  that  one  of  two 
joint-chasers  had  been  ordered  to  pick  up  the  boats 
of  the  other,  and  by  reason  of  the  delay  occasioned 
by  the  performance  of  this  service,  had  lost  sight 
of  the  prize,  and  a  third  ship  came  up  and  made 
the  capture,  it  was  held  that  no  right  existed  to 
share  with  that  ship.^ 

Lord  Stowell  said :  "  To  obey  the  lawful  com- 
mands of  their  superiors,  is  the  first  duty  of  the 
king's  ofiicers,  and  views  of  mere  private  advan- 
tage are  of  secondary  consideration  only,  and  must 
give  way  to  the  imperative  requisitions  of  the  pub- 
lic service." 


In  support  of  the  blockade  at  Malta,  in  1800, 
the  British  national  ships  of  war,  Oulloden  and 
NoHlbumhevland^  were  stationed  at  different  ports. 
They  preferred  a  claim  as  joint-captors,  which  was 
resisted  on  the  ground  that  they  had  been  unable 
to  take  actual  part  in  the  capture,  in  consequence 
of  unfavorable  weather.^ 

In  the  opinion  of  the  court  allowing  the  claim. 
Lord  Stowell  says :  ' 

"It  is  objected  that  they  had  not  the  physical 
means  of  pursuing,  because  the  state  of  the  wind 
was  such  that  they  could  not  quit  the  bay. 

"  Whether  they  would  have  pui'sued  if  it  had 


The  Financier,  1  Dod.,  67. 

The  Guillaume  Tell,  1  Edw.,  112. 


JOINT-CAPTURE.  217 

been  physically  possible,  it  is  not  necessary  to  in- 
quire. In  tlie  case  of  chasing  by  a  fleet,  the  ani- 
mus pei^sequendi  in  all,  is  sufficiently  sustained  by 
the  act  of  those  particular  ships  which  do  pursue.  It 
is,  I  think,  highly  probable,  that  even  if  the  wind  had 
been  fair,  the  Oalloden  and  Northumberland^  as  some 
of  the  other  ships  off  Valetta  did,  would  have  re- 
mained in  a  state  of  inactivity,  reasonably  judging 
from  the  precautions  taken,  and  from  the  flashes  of 
the  guns,  that  a  sufficient  force  had  already  gone  up- 
on the  service.  Therefore,  unless  it  can  be  main- 
tained, which  it  certainly  cannot,  that  the  whole  of 
a  squadron  must,  in  all  cases,  pursue,  and  that  the 
other  ships  which  remain  inactive  off  Valetta  are 
not  entitled  to  share,  upon  what  principle  are  these 
two  ships  to  be  excluded  ?  But  it  has  been  urged, 
as  the  wind  then  was,  ships  of  their  burden  could 
not  have  cleared  the  shoals  so  as  to  get  out ;  and  it 
comes,  therefore,  to  a  question  of  law,  whether  such 
an  intervention  of  physical  impossibilities  will  ex- 
clude a  ship  from  being  held  part  of  a  squadron  as- 
sociated for  the  express  purpose  of  making  the  cap- 
ture. There  have  been  cases  in  which  it  has  been 
held  that  physical  impossibilities  of  some  perma- 
nence, and  which  could  not  be  removed  in  time,^ 
would  have  such  an  effect ;  as,  for  instance,  in  the 
case  of  a  ship  lying  in  harbor,  totally  unrigged, 
which  has  been  held  to  be  as  much  excluded  as 
one  totally  unconscious  of  the  transaction,  because, 
by  no  possibility  could  that  ship  be  enabled  to  co- 
operate in  time.  But  I  take  it,  that  in  no  case,  the 
mere  intervention  of  a  circumstance  so  extremely 
local  and  transitory  as  the  accidental  state  of  the 
wind,  has  been  made  the  ground  of  exclusion.    The 


218  JOINT-CAPTURE. 

interests  of  joint-captors  would  be  placed  on  a  ver}' 
precarious  and  uncertain  footing,  if  a  doctrine  wore 
admitted,  wliicli  referred  tliem  to  the  legal  opera- 
tions of  a  casualty  so  variable  in  itself,  and  so  lit- 
tle capable  of  being  accurately  estimated. 

"  It  being  proved  in  this  case,  that  the  whole  fleet 
were  acting  with  one  common  consent,  upon  a  pre- 
concerted j^lan,  for  the  capture  of  this  prize,  it  was 
as  much  a  chasins;  from  the  orders  of  the  officer  in 
command,  as  if  it  had  actually  taken  place  in  open 
sea.  It  was  a  chasing  by  signal,  and  in  sight  of 
these  two  ships  ;  which,  even  if  they  had  not  been 
incapacitated  by  the  state  of  the  wind,  in  all  prob- 
ability would  not  have  thought  it  necessary  or 
proper  to  join  in  the  pursuit. 

"  The  cases  which  have  been  cited  are  very  differ- 
ent from  this.  The  Genereux  (Lords,  May  7th, 
1803)  was  captured  upon  the  coast  of  Sicily,  at  the 
distance  of  twenty-two  leagues  from  Malta,  by  a 
part  of  the  squadron  which  was  sent  to  look  out 
for  her,  while  the  rest  kept  their  station  off  Valetta ; 
there  was  no  sight,  and  the  utmost  they  could  bring 
the  case  up  to  was,  that  a  firing  of  the  guns  was 
heard  by  one  of  the  stationed  ships. 

"  In  the  case  of  the  Mars^  there  was  neither  sight 
nor  association ;  and  in  the  Frantmansdorff  (Lords, 
1st  August,  1795),  there  was  the  same  efiectA^f  a 
want  of  association. 

"  Now,  in  this  case,  there  was  not  only  an  actual 
sight,  not  only  a  perfect  conusance  of  what  was 
going  forward,  but  as  complete,  and  uniform,  and 
persevering  an  association  in  this  particular  object, 
as  well  as  in  the  general  object  of  the  blockade,  as 
can  be  imagined.     I  am  therefore  of  opinion,  that 


JOINT-CAPTURE.  2  \  0 

tlie  Cidloden  and  Nortliumherland  are  entitled  to 
share,  and  tliat  tlie  same  right  will  extend  to  the 
other  shij)S  which  remained  off  Valetta,  although 
they  have  not  made  themselves  parties  to  this  suit. 
But  the  national  shij)  Leda  was  sent  forward  to 
the  coast  of  South  America  to  obtain  information 
there  for  the  guidance  of  the  expedition  against 
Buenos  Ayres.  She  left  the  station  before  the 
armament  arrived,  and  again  returned  a  few  days 
after  the  capture  of  the  settlement  made  by  the 
fleet.  She  was  held  not  to  be  entitled  to  share  as 
joint-captor,  either  by  virtue  of  antecedent  or  of 
subsequent  service  in  the  enterprise.' 


ii\ 


The  ship  of  war  Defence  was  in  sight  from  the 
masthead  on  the  occasion  of  a  captui'e  being  made 
by  another  vessel,  and  on  that  ground  claimed  the 
privilege  of  joint-captor.      Lord  Stowell  said:  "  I  J^°,3-'th;n^^; 
am  not  aware  of  any  one  instance  in  which  the  sight  only 

-,    »  •    •     ,  ,  1      •         from  the  mast- 

court  has  pronounced  for  a  joint-capture  on  being  head. 
in  sight  only  from  the  masthead.  I  do  not  say  that 
such  a  case  would  be  entirely  and  absolutely  out  of 
the  reach  of  the  principle  on  which  the  being  in 
sight  is  admitted  to  constitute  an  interest  of  joint- 
capture  ;  but  this  may  be  safely  affirmed — that  if 
the  court  was  to  pronounce  for  such  a  claim,  upon 
such  evidence,  it  would  be,  in  all  respects,  a  very 
extreme  case  indeed."^ 

The  ships  Alfred,  Dictator,  Bittern,  Zephyr  and 
Pelican  claimed  to  share  in  the  property  taken  on 
land,  and  in  the  capture  of  one  vessel,  and  in  the 

t 

'  Buenos  Ayres,  1  Dod.,  28.        '  The  Robert,  3  Rob.,  194. 


220  JorNT-a^PTUEE. 

distribution  of  "bounty  for  the  destruction  of  others, 

upon  the  capture  of  the  isLand  of  Trinidad  by  the 

British.     The  claim  was  based  on  the  averment  that 

these  vessels  were  in  sight,  and  the  admiral  (Harvey) 

in  command  of  the  fleet,  expressed  an  opinion  that 

these  vessels  must  have  been  in  sight  the  evening 

before  the  enemy's  ships  were  set  on  fii^e  and  the 

capture  made. 

The  being  in      Lord  Stowcll  Said :  "  The  grounds  of  this  opinion 

ftfmauve?7  "" '  Seem  to  be  very  rational  and  just,  and  if  supported 

proved.  ^^  ^-j^^  ^^j,^  ^£  ^i^g  vessels  themselves,  they  might 

have  been  very  material.  But  the  court  is  bound 
to  expect  that  the  being  in  sight  should  be  proved 
by  some  direct  evidence  applied  to  the  fact,  and  not 
•  merely  by  opinion,  formed  upon  the  conjectures  of 
any  persons,  however  respectable  they  may  be. 

"  It  is  said  that  they  heard  the  explosion.  But 
it  is  a  common  phrase,  not  more  contemptible  for 
being  common,  that  hearing  is  not  seeing. 

"  The  explosion  of  such  a  body  as  a  ship  of  war 
would  be  heard  at  a  stupendous  distance. 
'  "  It  is  a  well-known  fact  that,  in  the  famous  bat- 
tle in  the  Downs,  the  explosion  was  heard  in  St. 
James's  Park,  and  was  made  the  foundation  of  a 
mathematical  calculation  by  Sir  William  Petty, 
with  respect  to  the  velocity  of  the  progress  of 
sound.  So,  with  regard  to  the  conflagrationj  the 
atmosphere  would  be  illuminated  to  a  prodigious 
distance ;  but  it  would  be  ludicrous  to  say  that 
all  who  were  within  the  reach  of  these  appearances, 
produced  by  the  fire,  are  to  be  taken  in  law  as 
present  at  the  occurrence  itself."^ 

'  The  San  Damaso,  3  Rob.,  234. 


JOINT-CAPTURE.  221 

Three  days  after  tlie  battle  of  Trafalgar,  a  Spanish 
luan-ofwar  was  taken  by  the  British  ship  The  Don- 
egal, and  The  Leviathan,  though  in  sight  at  the  time, 
^v;\s  not  admitted  as  joint-captor,  because  she  was 
actually  employed  in  taking  care  of  other  ships  and 
prizes  captured  in  the  l^attle,  and  in  watching  the 
movements  of  The  Monarch,  another  Spanish  ship.^ 

Mere  intimidation  without  co-operation  or  active  Mere  mtimida- 

.,  .  ,  /¥>•,!        "p  -i    -  n  •    '     ,    tion  without 

assistance  is  not  sumcient  basis  tor  a  claim  ot  joint-  cooperation in- 

f-anfnrp  sufficiont  to 

Certain  East  India  ships  were  employed  to  trans-  ^'^s'^ts  of  joint 
port  a  number  of  troops  to  the  Cape  of  Good  Hope, 
and  claimed  to  share  in  the  capture  of  that  posses- 
sion made  in  1795. 

Lord  Stowell  said :  "  If  they  had  been  associated 
to  act  in  conjunction  with  the  fleet,  and  did  so  act, 
they  might  acquire  an  interest  which,  on  proper 
application,  Avould  be  sure  to  meet  with  due  atten- 
tion. The  question  for  me  to  consider,  then,  will 
be,  whether  they  have  acquired  that  military  char- 
acter or  not  ? 

"  Tlioir  pretensions  have  been  put  forward  on  sev- 
eral grounds. 

"  It  is  first  said  that  they  were  associated  with  the  Nor  mere  as- 
fleet.     Mere  association  will  not  do — the  plea  must 
go  further,  and  show  in  what  capacity  they  were  as-  • 
sociated,  and  that  capacity  must  be  du'ectly  military.  Unless  in  a 

.  .  •/  r*     direct  milit ..  , 

Transports  are  associated  "with  fleets  and  armies  f)r  capacity, 
various  purposes  connected  with,  or  subservient  to, 
the  military  uses  of  those  fleets  and  armies.     But  if 
they  are  transports  merely,  and  as  such  are  em2)loyed 
simply  in  the  transportation  of  men  or  stores — they 

'  The  El  Rayo,  1  Dod.,  42. 


-22  JOINT-C  APTU  RE. 

do  not  rise  above  their  proper  mercantile  character, 
in  consequence  of  such  employment.  The  employ- 
ment must  be  that  of  an  immediate  application  to 
the  purposes  of  direct  military  operations,  in  which 
they  are  to  take  a  part. 

"It  is  next  placed  on  the  ground  of  intimidation, 
and,  it  is  said,  that  when  the  enemy  is  proved  to 
have  been  intimidated,  where  it  is  not  matter  of  in- 
ference, but  of  actual  proofs  the  assistance  arising 
from  intimidation  is  not  to  be  considered  construc- 
tive merely,  but  an  actual  and  effective  co-opera- 
tion. 

"  But  I  take  that  to  be  not  quite  correct,  for  a 
hundred  instances  might  be  mentioned,  in  which 
actual  intimidation  might  be  produced,  without 
any  co-oj^eration  having  been  given.  Suppose  the 
case  of  a  small  frigate  going  to  attack  an  enemy's 
vessel,  and  four  or  five  large  merchant  ships,  un 
conscious  of  the  transaction,  should  appear  in  sight, 
they  might  be  objects  of  terror  to  the  enemy,  but 
no  one  would  say  that  such  a  terror  would  entitle 
them  to  share :  though  the  fact  of  terror  was  ever 
so  strongly  proved,  there  would  not  be  that  co- 
operation and  active  assistance,  which  the  law 
requires  to  entitle  non-commissioned  vessels  to  be 
•  considered  as  joint-captors.  What  is  the  intimida- 
tion alleged  ?  That  the  Dutch  forces  were  ^bout 
to  make  an  attack  on  the  British  army,  but,  on  the 
appearance  of  these  fourteen  ships,  desisted.  This 
was  an  intimidation  of  which  the  ships  were  totally 
unconscious,  and  which  would  have  been  just  as 
efl'ectually  produced  by  a  fleet  of  mere  transports : 
and  I  see  no  principle  on  which  I  could  pronounce 
these  ships  entitled,  on  which  I  should  not  also  be 


JOINT-CAPTUEE.  223 

obliged   to   pronounce  any  fleet  of  mercliantmen 
entitled,  in  a  similar  situation ;  for  any  number  of 
large  ships,  known  to  be  Britisli,  and  not  known 
to  be  merchantmen,  would  have  produced  the  same 
effect.     The  intimidation  was  entirely  passive,  there 
was  no  animus  nor  design  on  their  part,  nor  even 
knowledge  of  the  fact;  for  it  was  not  till  tiie  next 
day,  when  their  commodore  returned  from  Lord 
Keith,  that  they  knew  any  thing  of  the  matter,  or 
even  thought  of  the  terror  that  they  had  assisted 
in  exciting.     I  take  it  to  be  incontrovertibly  true, 
that  no  case  can  be  alleged,  in  which  a  terror  so 
excited  has  been  held  to  enure  to  the  benefit  of 
a   non-commissioned  vessel.     Another   ground   on 
which  it  is  put,  and  which  it  may  be  proper  for  me 
to  advert  to,  is  the  ground  of  analogy.      That  it  is 
a  case  of  assistance,  analogous  to  that  of  joint-chas- 
ing, on  which  it  is  said  to  be  sufficient,  if  the  non- 
commissioned ship  puts  itself  in  motion,  and  the 
cases  of  the  Twee  Gesiistei\  in  the  last  war,  and 
the  La  France  have  been  relied  upon.     I  see  no 
ground  on  which  the  analogy  can  be  supported. 
The  cases  cited  were  of  a  very  different  nature.     In 
both  of  them,  the  non-commissioned  ships  chased, 
animo    capiendo   and   contributed    materially,   di- 
rectly and  immediately  in   the  caj)ture.      In   the. 
present   case,  these   ships   approached,  it  is  true, 
the  Cape  of  Good  Hope,  but  with  no  animus  capi- 
endi^  with  no  hostile  purpose  entertained  by  them- 
selves, for  they  were  totally  ignorant  of  the  objects 
of  the  expedition.     It  is  moreover,  obvious,  to  re- 
mark, that  all  cases  of  joint-chasing  at  sea,  differ  so 
materially  from   all    cases   of  conjunct  operations 
upon  land,  that  they  are  with  great  danger  of  in 


224  JOnTT-CAPTURE. 

accuracy,  applied  to  Tlustrate  eacli  other.     In  joint- 
chasing  at  sea,  there  is  tlie  overt  act  of  pursuing, 
hy  whicli  the  design  and  actual  purpose  of  the 
party  may  be  ascertained,  and  much  intimidation 
may  be  produced,  but  in  cases  of  conjunct  opera- 
tions upon  land,  it  is  not  the  mere  intrusion,  even 
of  a  commissioned  ship,  that  would  entitle  parties 
to  share.     The  interest  of  the  prize  is  given  to  the 
fleet  and  army,  and  it  would  not  be  the  mere  vol- 
untary interposition  of  a  privateer  that  would  en- 
title her  to  share.     It  would  be  a  very  inconveni- 
ent doctrine,  that  private  ships  of  war,  by  watching 
an  opportunity,  and  intruding  themselves  into  an 
expedition  which  the  public  authority  had,  in  no 
degree  committed  to  them,  should  be  at  liberty  to 
say,  '  we  will  co-operate,'  and  that  they  should  be 
permitted  to  derive  an  interest  from  such  a  spon- 
taneous act,  to  the  disadvantage  of  those  to  whom 
tlie  service  was  originally  intrusted.      Expeditions 
of  this  kind,  designed  by  the  immediate  authority 
of  the  state,  belong  exclusively  to  its  own  instru- 
ments, whom  it  has  selected  for  the  purpose,  and  it 
might  be  attended  with  very  grave  obstruction  to 
the  public  service  of  the  country,  if  jirivate  indi- 
viduals could  intrude  themselves  into  such  under- 
takings, uninvited,  and  under  color  of  their  letter 
of  marque.     I  think,  therefore,  that  the  cases  of 
chasing  at  sea  and  of  conjunct  operations  on  land, 
stand  on  different  principles,  and  that  there  is  little 
analogy  which  can  make  them  clearly  applicable  to 
each  other. 

"  It  is  next  said,  that  they  were  directed  to  hoist 
pennants,  and  that  it  was  the  opinion  of  a  very 
high  military  officer  in  a  former  case,  that  the  per- 


JOINT-CAPTURE.  2  2  5 

mission  to  wear  the  pennant  did  give  tTie  character 
of  king's  ship  ;  but  the  decision  in  the  very  case  in 
which  that  opinion  was  offered  (in  the  capture  of 
ISTec^^apatam),  hehl,  that  a  ship,  which,  in  that  case 
had  worn  a  pennant,  was  not  to  be  considered  in  a 
military  character,  but  as  a  transport ;  the  mere 
circumstance,  therefore,  that  these  ships,  which  were 
large  ships,  and  had  before  carried  pennants,  and 
had  taken  them  down  only  out  of  respect  to  the 
king's  ships,  and  were  desired  to  hoist  them  again, 
I  cannot  hold  to  be  a  sufficient  proof  that  they 
were,  by  that  act,  taken  and  adopted  into  the  mili- 
tary character.  I  can  attribute  no  such  effect  to  a 
mere  act  of  civility  and  condescension.  In  the  next 
place,  it  is  argued,  that  these  ships  were  actually 
employed  in  military  service,  although  there  is  no 
such  averment  in  the  plea.  It  comes  out  in  evi- 
dence only,  that  their  boats  were  employed  in 
carrying  provisions  and  military  stores  on  shore. 
That  was  a  service  certainly,  but  not  a  service  be- 
yond the  common  extent  of  transport  duty.  They 
landed  them  probably  at  the  same  time  with  the 
troops,  for  whose  use  they  were  intended ;  and  if 
not  at  the  same  time,  still  it  is  no  more  than  what 
they  were  bound  to  do  with  the  stores  and  pro- 
visions they  carried."^ 

A  claim  of  joint-capture  was  made  on  behalf  of 
land  forces,  said  to  have  co-operated  with  the  fleet 
in  the  taking  of  the  Dutch  fleet  in  Saldanah  bay  in 

1796. 

In  rejecting  the  claim  Lord  Stowell  said:    " The  Th^e^. qup^s^tion 

question  is,  whether  such  a  case  has  been  made  out,  whether  army 

*  The  Cape  of  Good  Hope,  2  Rob.,  282. 
15 


226  JOIIS^T-CAPTUEE. 

forces  can  be  Oil  the  part  of  the  army  as  will  support  their  claira 
*;,oiit-laptors  ^^  ^^6  considered  joint-captors  ?  In  the  first  place, 
with  the  nava!  ^^  jg  j^^^  pretended  that  it  is  a  case  which  comes 

forces.  .... 

within  the  provisions  of  the  prize  act  (33  Geo.  III. 
c.  16),  which  directs  the  army  to  share  in  some 
cases  in  conjunction  with  the  fleet.  In  the  next 
place,  it  is  not  argued,  that  this  is  a  case  of  con- 
certed operations.  That  the  army  and  navy  might 
have  similar  views  is  not  contested,  but  whatever 
was  done  was  done  separately,  and  without  concert 
or  communication.  Thirdly,  it  cannot  be  denied 
that  it  lies  with  the  army  to  make  out  a  case  of 
joint-capture,  and  to  show  a  co-operation  on  their 
part,  assisting  to  produce  the  surrender — for  the 
surrender  was  made  to  the  fleet  alone,  possession 
was  taken  by  the  fleet ;  the  army  could  not  take 
it ;  therefore,  the  onus  prolmndi  lies  on  them  to 
prove  that  there  was  an  actual  co-operation  on  their 
part :  for  it  is,  I  think,  established  by  judicial  au- 
thority, and  particularly  in  the  late  case  of  Jag- 
gernaiclh  (Lords,  January  26,  1799),  that  much 
more  is  necessary  than  a  mere  being  in  sight,  to 
entitle  an  army  to  share  jointly  with  the  navy  in 
the  capture  of  an  enemy's  fleet.  The  mere  presence, 
or  being  in  sight,  of  different  parties  of  naval  force, 
is,  with  few  exceptions,  suflicient  to  entitle  them  to 
be  joint-captors,  because  they  are  always  conceived 
to  have  that  privity  of  purj)Ose  which  may  cdnsti- 
tute  a  community  of  interest;  but  between  land 
and  sea  forces,  acting  independently  of  each  other, 
and  for  different  pui'poses,  there  can  be  no  such 
Material  ser-  j^rivity   presumed ;    and   therefore   to    establish    a 

vice  requisite       -,.  !•••/;  i-  .i  ,1 

to  entitle  the  claim  01  joiut-capture  between  them,  there  must 
b'-uefit  of  ?int  '"^^  ^  Contribution  of  actual  assistance,  and  the  mere 


JOINT-CAPTURE.  227 

presence,  or  heino;  in  sio-lit,  will  not  he  sufficient,  capture  with 
Fourtlily,  1  am  strongly  inclined  to  hold,  that  when  less  in  case  o*" 
there  is  no  preconcert,  it  must  not  be  a  slight  ser- Concert  ^  ^'^^ 
vice,  nor  an  assistance  merely  rendering  the  capture 
more  easy  or  convenient,  but  some  very  material 
service,  that  will  be  deemed  necessary  to  entitle  an 
army  to  the  benefit  of  joint-capture.  Where  there 
is  preconcert,  it  is  not  of  so  much  consequence  that 
the  service  should  be  material,  because  then,  each 
j)arty  performs  the  service  that  is  assigned  to  him, 
and  whether  that  is  important  or  not,  is  not  so  ma- 
terial. The  part  is  performed,  and  that  is  all  that 
was  expected.  But  where  there  is  no  such  privity 
of  design,  and  where  one  of  the  parties  is  of  force 
equal  to  the  work,  and  does  not  ask  for  assistance, 
it  is  not  the  interposing  of  a  slight  aid,  insignificant, 
perhaps,  and  not  necessary,  that  will  entitle  the 
other  party  to  share. 

"Tlie  principle  of  terror,  to  support  this  claim, 
must  be  a  terror  operating  not  mediately  and  with  re- 
mote eftect,  but  directly  and  immediately  influencing 
the  capture.  I  will  not  say  that  a  case  might  not, 
under  possible  cii*cumstances  arise,  in  which  troops 
on  shore  might  be  allowed  to  share  in  a  capture 
made  in  the  first  instance  by  a  fleet.  I  will  put  this 
case.  Suppose  a  fleet  should  come  into  a  hostile 
l)ay,  with  the  design  of  capturing  a  hostile  fleet  ly- 
ing there,  and  a  fleet  of  transports  should  also  acci- 
dentally arrive  with  soldiers  on  board;  suppose 
these  soldiers  made  good  their  landing,  and  gained 
possession  of  the  hostile  shore,  and  hj  that  means 
should  prevent  the  enemy  from  running  on  shore 
and  from  landing,  and  thereby  influence  them  to 
■  surrender.     I  will  not  say  that  troops  in  such  a 


228  JOINT-CAPTUEE. 

situation  might  not  entitle  tliemselves  to  share,  al- 
though the  surrender  had  been  made  actually  to 
the  fleet.  But,  suppose  the  troops  to  land  on  a 
coast  not  hostile,  but  not  on  their  own  coast — I  do 
not  suppose  that  the  possession  of  such  a  shore 
would  draw  the  same  consequences  after  it,  for 
what  difference  would  it  make  whether  there  were 
troops  on  shore  or  not  ?  The  enemy  must  know, 
that  in  a  day  or  two  the  landing  on  a  shore,  to 
them  hostile,  must  be  followed  by  sure  and  certain 
captivity,  whether  there  was  a  party  of  military  O]' 
not. 

"  What  additional  terror  does  an  army  hold  out  ? 
The  consequences  of  captivity  would  be  the  same  in 
either  case,  and  unless  there  had  been  a  notice  and 
denunciation  of  particular  severity,  I  do  not  under- 
stand that  by  the  laws  of  war  they  would  be  ex- 
posed to  more  than  a  rigorous  imprisonment.^ 

"  Where  a  caj^ture  is  made  by  a  conjoint  expedi- 
tion, composed  of  a  British  naval  force  and  an  army 
of  allies,  the  case  is  not  within  the  provisions  of  the 
British  prize  act,  and  therefore  the  captors  must  al- 
together depend  upon  the  government  bounty  for 
reward  for  such  a  capture.^" 
Rights  of  joint-      The  claim  of  joint-captors  is  not  invalidated  by 
vMatedbythe  the  fraudulent  couduct  of  the  actual  captors. 
fraud  of  the       ^pj^g  master  of  Tlie  Sirius,  the  capturina:  frio-ate 

actual  captors.  _  ^  '  j.  &        o        j 

was  charged  with  having,  "  contrary  to  the  rule  and 
practice  of  the  navy,"  made  no  signal  of  an  enemy, 
to  other  British  vessels-  in  sight ;  and  Lord  Stowell 
said,  admitting  the  other  to  the  benefit  of  joint-cap- 

'  The  Dordrecht,  2  Rob.,  57. 

^  The  Stella  del  Norte,  5  Rob.,  350 ;  The  British  Ouiana^  2 
Dod.,  151. 


JOINT-CAPTURE.  229 

ture :  "  Tlieir  discontinuance  of  the  chase  and  alter- 
ation of  the  course,  is  not  an  act  of  their  own,  but 
an  act  wa'ongfully  occasioned  by  the  neglect  or  mis- 
take or  wilful  omission  on  the  part  of  the  Sirius ; 
and  being  so,  would  not  have  the  effect  which 
generally  would  follow  upon  the  discontinuance  of 
the  chase  and  alteration  of  the  course,  before  the  act 
of  capture  took  place ;  for  generally,  a  discontinu- 
ance and  alteration  would  defeat  the  interest  of  a 
joint-Ciiptor,  by  destroying  the  presumption  of  as- 
sistance and  intimidation."^ 

There  are  many  other  cases  in  which  fraud  on  the 
part  of  the  actual  captor  has  been  held  to  vest  an 
interest  as  joint-captors  in  those  who  would  have 
been  co-operators  or  constructive  captors,  but  for 
such  fi'audulent  act.'^ 

In  cases  where,  at  a  period  antecedent  to  the  cap- 
ture, an  engagement  had  taken  place  between  the 
vessel  claiming  as  joint-captor,  on  the  basis  of  con- 
structive assistance,  and  the  prize,  the  courts  lean 
strongly  in  favor  of  upholding  the  claim. 

The  British  ship-of-war  Sparrow^  had  engaged 
L Etoile^  a  French  frigate,  a  joint-cruiser,  the  Hehrus 
then  being  in  the  distance.  On  the  following  day 
The  Hehrus  captured  LEtoile^  The  Sparrow  still 
being  in  chase.  The  claim  to  share  on  the  part  of 
The  Sparrow  was  admitted,  by  Lord  Stowell  say- 
ing :  "  I  hold  it  to  be  a  clear  and  indisputable  rule 
of  law,  that  if  two  vessels  are  associated  for  one 

'  The  Waakmmheid,  3  Rob.,  Y. 

^  The   Galen,   1    Dod.,  433 ;    The  Herman,  3    Rob.,  S\    The 
Robert,  ib.,194  ;   The  Endraught,  ib.,  Appendix,  35  ;   The  Miner  mi, 
.  2  Acton,  112  ;  La  Virgine,  6  Rob.,  124;  L'Amitie,  6  Rob.,  267  ; 
Th~'  Sparkler,  1  Dod.,  362. 


230  .TOINT-CAPTUEE. 

common  purpose,  as  these  vessels  were,  tlie  continu- 
ance of  the  cliase  is  sufficient  to  give  the  right  of 
joint-capture.  Sight,  under  such  circumstances,  is 
by  no  means  necessary,  because,  exclusive  of  that, 
there  exists  that  which  is  of  the  very  essence  of  the 
claim,  encoui'agement  to  the  friend,  and  intimida- 
tion to  the  enemy.  Both  The  Hebrus  and  the  ene- 
my's frigate  knew  that  The  Sparrow  was  astern, 
and  that  she  was  using  her  best  endeavors  to  come 
up.  She  was  a  consort  of  the  actual  captor,  and 
pursued  the  prize  in  conjunction  with  her,  and  had 
not  discontinued  the  pui'suit  when  the  capture  was 
consummated."^ 

Previous  con-  If  two  cruiscrs  casually  meet,  and  the  captain  of 
ent*basis  fora  the  ouc  is  scuior  iu  scrvicc  to  the  captain  of  the 
claim  of  joint-  other,  thousfh  thcv  are  of  equal  rank,  by  the  rules 

capture  it  not  '  p  ''       ^  J-  t      J 

abandoned  at  of  the  scrvicc  the  shi23  uudcr  the  command  of  the 

the  time  of  the   ..  ,^1  •  t  ,t         -,-         ,.  ^.t  ,i 

capture.  juuior  omccr  IS  under  the  direction  ot  the  other. 

If,  in  pursuance  of  such  direction,  the  junior  cap- 
tain is  ordered  to  pui'sue  one  of  two  hostile  vessels 
in  sight,  while  the  senior  pursues  the  other,  both 
vessels  being  taken,  the  junior  is  entitled  to  share 
as  joint-captor  of  both.^  "  I  consider  it  to  be  a 
clear  rule  of  law,"  said  Lord  Stowell,  in  this  case, 
"that  ships  engaged  in  a  joint-enter j)rise  of  this 
kind,  and  acting  under  the  orders  of  the  same  stipe- 
rior  officer,  are  entitled  to  share  in  each  other's 
prizes ;  and  it  is  certainly  for  the  benefit  of  the 
public  service  that  a  rule  of  this  sort  should  pre- 
vail, in  order  that  the  pul)lic  force  of  the  state  may 
be  distributed  so  as  to  produce  the  greatest  pos- 


UEtoile,  2  Dod.,  107.        '  The  Empress,  1  Dod.,  368. 


I    7".' 


JOINT-CAPTUEE.  231 

sible  advantage  to  the  country,  and  tlie  greatest 
possible  annoyance  to  the  enemy." 

Where,  however,  there  has  been  such  a  disper- 
sion of  vessels,  between  whom  there  existed  a  pre- 
vious concert,  that  it  had  become  manifestly  impos- 
sible for  either  to  receive  support  or  assistance  from 
the  other,  the  mere  fact  of  original  concert  will  not 
support  a  claim  of  joint-captm^e. 

A  French  shi]3  was  taken  by  one  of  three  Eng- 
lish ships,  which,  having  been  apprised  of  the  de- 
sign of  the  enemy's  ship  to  attempt  an  escape  from 
the  harbor  of  Port  au  Prince,  had  stationed  them- 
selves at  the  several  outlets  of  that  harbor.     The 
enemy's  ship   having  been  taken  by  one  of  the 
British  ships,  the  others  not  being  present,  claim 
to  share  as  joint-captors  was  preferred  by  the  ships 
not  present,  and  rejected.^     The  justice  of  this  de- 
cision, or  its  correctness  upon  the  established  prin- 
ciples in  the  law  of  joint-capture,  is  not  readily  ap- 
preciated.    It  would  certainly  seem  that  the  ships 
guarding  the  outlets  of  the  harbor  through  either 
of  w^hich  the  enemy's  ship  might  have  escaped,  and 
probably  would  have  escaped  but  for  their  being- 
stationed  there,  were  quite  as  much  co-operating  in 
the  captui'e,  as  ships  continuing  on  the  chase,  at  the 
time  of  the  actual  capture  by  one  which  happened 
to  outsail  her  consorts. 

There  is  certainly  no  analogy  between  such  a 
case  and  that  of  a  claim  to  joint-capture  by  a 
cruiser  who  had  reconnoitred  the  prize,  but  at  the 
time  of  the  captui'e  by  another,  had  stood  off  on 
another  chase.^ 

'  The  Mars,  2  Rob.,  22. 

2  The  Lord  Middleton,  4  Rob.,  155  ;  The  Rattlesnake,  2  Dod.,  32. 


232 


RECAPTURE    AND    RESCUE. 

Tlie  Britisli  ship  Albion^  by  signal,  was  detached 
from  the  squadron  and  ordered  to  give  chase.  She 
did  so,  and  completed  that  duty ;  and  afterward, 
seeing  another  vessel  of  the  enemy,  she  made  a  sec- 
ond chase,  and  captured  the  ship ;  it  was  held  that  * 
the  ships  of  the  squadi'on  were  entitled  to  share  as 
joint-captors  in  the  second  prize.^ 

There  was,  at  one  time,  much  discussion  in  the 
admiralty  courts,  both  of  England  and  France, 
whether,  in  a  case  where  a  ship  of  the  enemy  is 
taken,  and  subsequently  lost  to  an  enemy's  cruiser, 
and  afterward  retaken  by  a  ship  other  than  the 
first  captor,  the  first  caj)tor  had  an  interest  in  the 
prize,  subject  to  the  salvage  claim  of  the  recaptors, 
or  wdiether  the  recapture  was  not  in  such  case  to 
be  regarded  as  an  original  capture,  vesting  the  in- 
terest in  the  second  captors.  And  this  last  has  be- 
come the  established  doctrine. 

It  was  so  decided  in  the  French  court  of  prize, 
by  a  decree  made  in  1748,^  and  by  the  Lords  of 
the  Admiralty  in  England,  in  two  cases  involving 
the  question  f  although,  in  a  previous  case  in  1778, 
it  had  been  decided  by  the  court  of  admiralty,  that 
the  first  taker  was  to  be  considered  the  actual  cap- 
tor, and  the  subsequent  taker  the  recaptor,  entitled 
to  a  high  salvage.* 

A  captor  may  be  deprived  of  the  benefit  of  his 
capture  either  by  rescue  or  by  a  recapture.      They 

'  Le  Bon  Aventure,  1  Acton,  211. 

*  Valin,  Traite  des  Prises,  c.  vi.,  §  1. 

*  The  Polly  (Lords,  Nov.  21,  1780)  ;    The  MargueHte,  (Lords, 
April  3,  1781). 

•*  The  Lucretia,  1778. 


EECAPTURE    AND    RESCUE.  233 

are  thus  distinguislied  :  a  rescue  is  where  tlie  cap-  Recapture  and 

T  ,         .  T  T   •         Of     ,  •  rescue  defined 

tured  party  rise  and  succeed  m  enectmg  a  recovery  and  distin- 
of  tlie  property  captui*ed ;  a  recapture  is  wliere  a  s^^^^'^^^- 
prize,  liaving  been  taken  by  an  enemy,  is  recovered 
from  Ms  possession  by  the  arrival  of  a  friendly 
force. 

There  is  a  kind  of  rescue  which  partakes  of  the 
character  of  the  recapture ;  and  this  occurs  where 
the  weaker  party,  before  he  is  overpowered,  obtains 
relief  from  the  arrival  of  friendly  succor,  and  is  thus 
preserved  ft-om  the  possession  of  the  enemy. 

A  recapture,  in  all  cases  where  it  can  be  effected,  'I'o  recaptures 
is  a  duty  incumbent  upon  friends  or  allies.^ 

A  rescue  is  matter  of  merit  rather  than  of  duty.  ^°  rescue  a 

''     meritorious 

Lord  Stowell  says :  "  Seamen  are  not  bound  by  act. 
their  general  duty  as  mariners  to  attempt  a  rescue ; 
nor  would  they  have  been  guilty  of  a  desertion  of 
duty  in  that  capacity,  had  they  declined  it.  It  is  a 
meritorious  act  to  join  in  such  attempts;  and  if 
there  are  persons  who  entertain  any  doubt  whether 
it  ought  to  be  so  regarded,  I  desire  not  to  be  con- 
sidered of  that  number.  As  to  the  situation  and 
character  of  persons  engaged  in  such  attempts,  it  is 
certainly  to  be  regarded  an  act  perfectly  voluntary, 
in  which  each  individual  is  a  volunteer,  and  is  not 
acting  as  a  part  of  the  crew  of  the  ship,  or  in  dis- 
charge of  any  official  duty,  either  ordinary  or  extra- 
ordinaiy,"^ 

The  distinction  between  the  obligation,  to  the 
performance  of  the  rescue,  which  partakes  of  the 
nature  of  a  recapture,  and  of  the  rescue  proper,  is 

.    '  The  Two  Friends,  1  Rob.,  271  ;  The  Helen,  3  Rob.,  224. 
2  The  Two  Friends,  1  Rob.,  271. 


234  ■  POSTLIMINIUM. 

obvious ;  for  iu  tlie  one  case  tlie  captiu'e  is  still  im 
perfect,  and  in  tlie  other  it  is  complete.  Tlie  law 
of  nations  does  not  require  that  a  vessel  should  bt 
commissioned  in  any  manner,  in  order  to  entitle 
her,  and,  indeed,  to  impose  upon  her  the  obligation, 
to  effect  a  recapture,  if  they  are  possessed  of  such 
superiority  as  to  render  it  just  that  they  should 
hazard  a  contest.^ 

Out  of  the  questions  of  rescue  and  recapture, 
arise  the  important  considerations  of  postliminium 
and  salvage. 
The  right  of  Postliminium  is  thus  defined  by  Vattel :  "  The 
considered,  right  of  postliminium  is  that,  in  virtue  of  which, 
persons  and  things  taken  by  the  enemy  are  restored 
to  their  former  state,  on  coming  again  into  the 
power  of  the  nation  to  which  they  belonged. 
When  persons  or  things,  caj^tured  by  the  enemy, 
are  retaken  by  our  allies  or  auxiliaries,  or  in  any 
other  manner  fall  into  their  hands,  this,  so  far  as 
relates  to  the  effect  of  the  right,  is  precisely  the 
same  thing  as  if  they  were  come  again  into  our 
power,  since,  in  the  cause  in  which  we  are  jointly 
embarked,  our  power  and  that  of  the  allies  is  but 
one  and  the  same."^  So  that,  when  possessions, 
taken  by  the  enemy,  are  recaptured  or  rescued  from 
him  by  the  fellow-subjects  or  allies  of  the  original 
owner,  they  do  not  become  the  property  of  the  re- 
captor  or  rescuer,  as  if  they  had  been  a  new  prize, 
but  are  restored  to. the  possession  of  the  original 
owners,  by  what  is  called  the  right  of  postliminium 
OY  jus postlirniriii^  upon  certain  condition  presently 

•  The  Helen,  8  Rob.,  224.      ""  Vattel,  Lib.  III.,  c.  xiv.,  §  204; 


POSTLIMINIUM.  235 

to  be  considered/  But  tlie  riglit  of  postliminium 
does  not  take  effect  iu  neutral  countries,  for  when 
a  nation  chooses  to  remain  neutral  in  war,  she  is 
bound  to  consider  it  as  equally  just  on  both  sides, 
as  far  as  relates  to  its  effects,  and  consequently  to 
look  upon  every  capture  made  by  either  party  as  a 
lawful  acquisition.  To  allow  one  of  the  parties,  in 
prejudice  to  the  other,  to  enjoy  in  her  dominions 
the  right  of  claiming  things  taken  by  the  latter,  or 
the  right  of  postliminium,  would  be  declaring  in 
favor  of  the  former,  and  departing  from  the  line  of 
neutrality. 

The  full  benefit  of  postliminium  is  not  attached 
to  movable  property,  as  are  lauds,  houses,  and  other 
fixed  possessions.  The  reason  of  this  is  simply  the 
impracticability  of  perfect  identification  as  a  gener- 
al thing,  and  the  consequent  presumption  of  aban- 
donment of  the  o"vvner. 

But  if  the  recapture  of  movables  follow  hard 
upon  the  capture,  the  right  of  postliminium  is  per- 
fect. This  is  the  general  law  of  nations  mth  re- 
gard to  the  right  of  postliminium  upon  movables. 
But,  "  prisoners  of  war,  who  have  given  their 
parole,  territories  and  towns  which  have  submitted 
to  the  enemy,  and  have  sworn  or  promised  alle- 
giance to  him,  cannot  of  themselves  retui*n  to  theu* 
former  position,  by  the  right  of  postliminium,  for 
faith  is  to  be  kept,  even  with  enemies.  But  if  the 
sovereign  retake  those  to^^nis,  countries  or  prisoners, 
who  had  surrendered  to  the  enemy,  he  recovers  all 
his  former  rights  over  them,  and  is  bound  to  re- 
establish them  in  their  pristine  condition. 


?52 


'VattLl,Lib.III.,c.xiv.,§208.     *Vattel,  Lib.IIL,c.xiv.,§§  210,211. 


236 


POSTLEVIINIUM. 


Tlie  riglits  of  postlimiuium  upon  property  which 
has  been  alienated  by  the  enemy  is  a  subject  of 
much  importance.     The  distinction  here  exists  be- 
tween movalde  and  immovable  property.   "Let  it 
be  remembered,"  says  Vattel,  "  as  to  immovables, 
that  the  acquisition  of  a  town  taken  in  w^ar,  is  not 
fully  consummated  till  confirmed  by  a  treaty  of 
peace  or  by  the  entire  submission  or  destruction 
of  the  state  to  which  it  belonged.     Till  then,  the 
sovereign  of  that  town  has  hopes  of  retaking  it,  or 
of  recovering  it   by  a  peace.     And  from  the  mo- 
ment it  retui^ns  to  his  power,  he  restores  it  to  all  its 
rights,  and  consequently  it  recovers  all  its  posses- 
sions, as  far  as  in  their  nature  they  are  recoverable. 
It  therefore  resumes  its  immovable  possessions  from 
the  hands  of  those  persons  who  have  been  so  pre- 
maturely forward  as  to  purchase  them.     In  buy  in  o- 
them  of  one  who  had  not  an  absolute  right  to  dis- 
pose of  them,  the  purchasers  made  a  hazardous 
bargain,  and  if  they  prove  losers  by  the  transaction, 
it  is  a  consequence  to  w^hich  they  deliberately  ex- 
posed themselves.      But  if  that   town  had  been 
ceded  to  the  enemy  by  the  treaty  of  peace,  or  was 
completely  fallen  into  his  power  by  the  submission    * 
of  the  whole  state,  she  has  no  longer  any  claim  to 
the  right  of  postliminium,  and  the  alienation  of 
any  of  her  possessions  by  the  conqueror  is  valid 
and  irreversible,  nor  can  she  lay  claim  to  them,  if 
in   the    sequel    some   fortunate   revolution   should 
liberate  her  fi'om  the  yoke  of  the  conqueror."^ 

As  to  movables,  we  find  the  law  to  be  otherwise, 
as  Vattel  states  in  the  same  section : 

'  Vattel,  B.  III.,  c.  xiv. 


POSTLIMINIUM.  237 

"  When  movable  property  lias  passed  into  tlie 
liaiuls  of  tlie  enemy,  unless  its  recovery  be  imme- 
diate, and  under  tliose  rare  circumstances  as  repel 
the  presumption  of  its  abandonment  and  render  it 
susceptible  of  a  complete  identification,  the  right 
of  postliminium,  as  we  have  seen,  does  not  attach 
to  it;  a  fortiori^  does  it  cease  to  be  affected  by  any 
such  right,  after  having  passed  into  the  complete 
possession  of  the  enemy,  it  has  been  by  him  in  good 
faith  transferred  to  a  neutral."^ 

Although  it  is  very  clearly  established  by  the 
law  of  nations,  that  the  right  of  postliminium,  as  to 
movables,  is  so  far  extinguished  when  they  have 
arrived  to  the  complete  possession  of  the  enemy,  as 
to  enable  him  to  confer,  by  alienation,  an  indefeasi- 
ble title  upon  a  neutral,  yet  the  question  in  this 
connection,  of  what  constitutes  such  complete  pos- 
session has  been  the  subject  of  no  little  discussion. 
While  some  writers  have  stated  it  to  be  sufficient 
if  the  property  have  been  twenty-four  hours  in  the 
enemy's  possession,  others  have  declared  it  to  be 
requisite  that  it  should  be  carried  infra  prcesidia, 
that  is,  within  the  camps,  towns,  ports  or  fleets  of 
the  enemy;  and  still  others  have  drawn  various 
arbitrary  lines.  It  has  become  in  later  days  a  well 
settled  principle,  that  a  possession  of  a  more  al:>so- 
lute  and  decided  character  is  requisite  to  confer 
such  a  title  as  to  extinguish  the  right  of  postli- 
minium. 

"  I  apprehend,"  says  Lord  Stowell,  in  a  case  in- 
volving the  question,  "  that  by  the  general  practice 
of  the  law  of  nations,  a  sentence  of  condemnation  is, 


'  2  Wooddes,  441,  §  34. 
11 


238  posTLmiNiuM. 

at  present,  deemed  generally  necessary — and  that 
a  neutral  purcliaser  in  Euro23e,  during  war,  does 
look  to  tlie  legal  sentence  of  condemnation,  as  one 
of  the  title-deeds  of  the  ship,  if  he  buys  a  prize 
A  sentence  of  vesscl.     I  believe  there  is  no  instance,  in  which  a 

condemnation  ,         .  -,  ,  .  i      r»      i     it  i 

necessary  to  man  haviug  purchascd  a  prize- vessel  ot  a  belligerent, 
erty'&^vor^of  ^1'*^^  tliought  himsclf  quitc  secure  in  making  that 
the  vendee  of  purchase,  merely  because  that  ship  had  been  in  the 

recaptor.  ^  .  .  r»  i  •     i 

enemy  s  possession  twenty-four  hours,  or  carried 
wfra  prwsidiaP'^ 

The  rule  which  requires  a  sentence  of  condemna- 
tion is  undoubtedly  the  established  rule  in  England. 
It  is  there  held,  that  until  such  condemnation,  the 
property  is  not  changed  in  favor  of  the  vendee  or 
recaptor,  so  as  to  bar  the  original  owner.^ 

As  long  ago  as  in  the  reign  of  Charles  II.,  a 
solemn  judgment  was  rendered  on  this  point,  and 
restitution  of  a  ship  was  decreed,  after  she  had  been 
fourteen  weeks  in  the  enemy's  possession,  because 
she  had  not  been  condemned.  This  early  judgment 
of  the  Court  of  Admiralty  is  cited  with  approval 
by  Lord  Mansfield  in  a  case  before  him  in  which 
the  point  arose.^ 

The  English  courts  of  common  law  have  since 
enforced  the  rule,'*  and  even  to  the  extent  of  hold- 
ing, that  after  four  years'  possession,  and  the  per- 
formance of  several  voyages,  the  title  to  the  prop- 
erty is  not  changed  without  a  sentence  of  condem- 
nation. 

A  sentence  of  condemnation  has  been  universally 

'  The  Flad  Oyen,  1  Rob.,  134.  ^  3  Rob.,  236. 

^  Goss  vs.  Withers,  2  Burr.,  583. 

*  Assievedo   vs.  Cambridge,  10  Mod.,   79  ;  vide   The  Constant 
Mary,  3  Rob.,  97,  237. 


POSTLIMIKtUM.  239 

held  to  intend :  fii'st,  a  sentence  by  a  court  of 
competent  jurisdiction,  and  second,  a  sentence  of 
such  court  either  in  the  country  of  the  enemy  or 
an  ally,  and  not  in  a  neutral  country. 

The   rio'ht  of  postliminium   terminates   by  the '^*'™^*^°'^'i^ 
f    ^        .  right  01  post- 

declaration  of  peace,  between  the  country  of  the  limmium. 

enemy  and  that  from  which  the  prize  wa»  taken. 

Therefore,  it  has  been  held,  that  a  ship  which  has 

been  sold  to  a  neutral,  after  an  illeo-al  condemnation 

by  a  prize  court,  and  which  would  not  have  been 

considered  as  a  valid  transfer  of  a  lesfal  title  in  time 

* 
of  war, — by  the  intervention  of  peace,  was  to  be 

deemed  a  legitimate  possession  in  the  neutral's 
hands,  and  cured  of  all  defects  of  title.  "  Other- 
wise," observed  Lord  Stowell,  "  it  could  not  be  said 
that  the  intervention  of  peace  would  have  the  effect 
of  quieting  the  possessions  of  the  enemy,  because  if 
the  neutral  possessor  was  to  be  dispossessed,  he 
would  have  a  right  to  resort  back  to  the  belligerent 
seller,  and  demand  compensation  from  him ;  and  as 
to  a  renewal  of  war,  though  that  may  change  the 
relations  of  those  who  are  parties  to  it,  it  can  have 
no  effect  on  neutral  purchasers,  who  stand  in  the 
same  situation  as  before."^ 

Where  a  transfer  has  been  made  in  good  faith 
by  a  hostile  captor  to  a  neutral,  at  the  time  of  the 
assignment,  the  title  of  the  assignee  will  not  be 
affected  by  his  subsequently  becoming  an  enemy.^ 

The  rules  which  have  been  stated  are  those  which, 
by  the  general  law  of  nations,  govern  the  right  of 


77?e  Sojyhie,  6  Rob.,  142. 

Thj  Purissima,  Conception.,  6  Rob.,  45. 


-40  posTLnriNroM. 

postliminium,  and  are  considered  of  binding  force 
where  the  interests  of  neutrals  are  concerned.  In 
cases,  however,  affecting  only  the  citizens  or  sub- 
jects of  the  nation,  some  peculiar  modifications  of 
the  genera]  principle  have  been  introduced  hy 
sj)ecial  statute  provisions,  both  in  England  and  in 
the  United  States. 

By  Jets  of  Parliament^  it  is  provided  that  the 
right  of  postliminium,  as  between  British  subjects, 
shall  continue  even  to  the  end  of  the  war ;  and, 
therefore,  the  ships  or  goods  of  the  subjects  of  that- 
country,  taken  at  sea  by  an  enemy,  and  afterward  re- 
taken at  any  indefinite  period  of  time,  and  whether 
before  or  after  a  sentence  of  condemnation,  are  to 
be  restored  to  the  original  proprietors.  An  exceiD- 
tion,  however,  is  made  as  to  ships  which  the  enemy 
have  set  forth  as  vessels  of  war;  these  are  not  sub- 
ject to  restoration  to  the  original  owners,  but  be- 
long wholly  to  the  recaptors.  But  if  the  property 
recaj^tured  was,  at  the  time  of  the  original  capture, 
employed  in  an  illegal  trade,  this  works  a  divest- 
ing of  the  original  right,  and  the  former  owner  will 
not  be  admitted  to  restitution  from  the  recaptors.*^ 
The  right  of      The  United  States  government,  by  act  of  Con- 

posthmmmm  -•  xi        •  ^t      •     -  •  ^•^ 

by  the  laws   grcss,  cxprcssly  continucs  the  jiC'S post hmtmi,  until 

of  the  United        t         ,•  r*  x i        x*xi       ±  x  i  x      i 

States.  ^  divesting  01  the  title  to  captured  property  by  a 

sentence  of  condemnation.  It  also  directs  a  resti- 
tution of  recaptured  23roperty  to  the  foreign  and 
friendly  owner  on  the  payment  of  reasonable  sal- 
vage.    But  the  provisions  of  the  law  are  declared 

'  13  Geo.  TL,  c.  iv. ;  17  Geo.TL,  c.  xxxiv. ;  19  Geo.  II.,  c.  xxxiv. ; 
43  Geo.  III.,  c.  clx. ;  2  Burr.,  1198 ;  1  Black.  Rep.,  27. 
2  The  Walmifjham  Packet,  2  Rob.,  77. 
^  March  3d,  1800,  U.  S.  Laws. 


MILITAEY    SALVAGE.  241 

not  to  apply  wliere  the  property  lias  been  con- 
demned as  prize  by  a  competent  court,  before  re- 
capture, nor  when  tlie  foreign  government  would 
not  restore  tlie  goods  or  vessels  of  citizens  of  the 
United  States,  under  tlie  like  circumstances.  Tliis 
last  provision  of  tlie  statute  law  of  the  United 
States  is  understood  to  be  tlie  rule  in  Ens-land.  In 
a  case  involving  tlie  right  of  postliminium  between 
the  subjects  of  Great  Britain  and  her  allies,^  Lord 
Stowell  says :  "  The  actual  rule  I  understand  to  be 
this:  that  the  maritime  law  of  England  having 
adopted  a  most  liberal  rule  of  restitution  with  re- 
spect to  the  recaptured  property  of  its  own  sub- 
jects, gives  the  benefit  of  that  rule  to  its  allies,  till 
it  appears  that  they  act  toward  British  property  on 
a  less  liberal  principle.  In  such  a  case,  it  adopts 
their  rule,  and  treats  them  according  to  their  own 
measure  of  justice." 

The  oblio-ation  of  recaptors  to  restore  the  property  General  right 

•    .       1  •  1         1  X     1  °f  salvage  on 

to  the  original  owner,  is,  as  a  general  rule,  connected  restitution  by 
with  the  right  on  theii"  part  to  be  paid  a  compensa-  ^®°^'^p^*^'"^- 
tion  or  reward  given  for  saving  or  recovering  the 
property :  and  this  is  denominated  salvage ;  and  to 
distinguish  it  from  the  ordinary  salvage  known  to 
the  commercial  law,  it  is  called  military  salvage. 

The  extent  of  this  compensation  is  usually  fixed  Rate  of  com- 

,      ,  'ii    pensation. 

by  legislative  enactments,  and  the  rates  vary  with 
varying  circumstances,  and  in  some  cases  the  amount 
is  within  the  uncontrolled  discretion  of  the  court.^ 

'  The  Santa  Cruz,  1   Rob.,  49 ;  vide  also  The  San  Francisco, 
1  Edwards,  2Y9. 

,  2  The  Dickenson,  Hay  and   Mariott,  48 ;  The  Betsy,  ib.,   81  ; 
The  Two  Friends,  I  Rob.,  279.  * 

16 


242  SALVAGE. 

To  sustain  a  claim  for  military   salvage,  tliere 
must  be  first,  a  lawful  original  capture ;  and  second, 
a  meritorious  service  in  effecting  a  recapture. 
Right  of  sal-      The  right  of  military  salvage  is  not  limited  to 
as  well  to     cases  of  rccapturc,  it  is  extended  equally  to  the 
cu?\s°ofTe-  ^^^^  ^^  ^^^^  recovery  of  captured  property  by  res- 
oapture.         q^q  •  this,  howevcr,  is  confined  to  the  rescue,  strict- 
ly so  called — that  is,  to  the  rescue  effected  by  the 
rising  of  the  captured  party  and  the  recovery  of 
the  property  after  the  capture  has  become  complete, 
and  the  possession  of  the  enemy  virtually  absolute. 
Salvage  is  never  awarded  in  cases  of  rescue  by  the 
an'ival  and  assistance  of  a  fresh  succor,  before  the 
property  has  been   subjected  to  the  possession  of 
the  enemy. 

"No  case  has  been  cited,"  says  Lord  Stowell, 
"  and  I  know  of  none  in  which  military  salvage 
has  been  given,  where  the  property  rescued  was 
not  in  the  possession  of  the  enemy,  or  so  nearly,  as 
to  be  certainly  and  inevitably  under  his  grasp. 
There  has  been  no  case  of  salvage,  where  the  j^os- 
session,  if  not  absolute,  was  not  almost  indefeasible, 
as  where  the  ship  had  struck,  and  was  so  near  as 
to  be  \T-rtually  in  the  hands  of  the  enemy.^ 

In  principle,  the  actual  performance  of  the  ser- 
vice of  recapture,  is  sufiacient  to  establish  the  claim 
for  salvage,  even  though  it  were  not  the  primai;y  in- 
tention, or  in  the  immediate  contemplation  of  the 
recaptors  to  perform  the  service  and  effect  the  recov- 
ery.' ^  ^  ^  ■  ^ 
No  commis-        As  uo  commissiou  or  letter  of  marque  is  requi- 

sion  requisite      . ,        ,       ,  i  />  /.   ,  i  •  ^ 

for  recapture,  Site  to  the  performance  oi  the  service  ot  recapture, 

'  The  Fninhlin,  4  Rob.,  147.     *  The  Proc/ress,  Edwards,  21]. 


SALVAGE.  243 

SO,  of  course,  tlie  recaptors  are  entitled  to  salvao-e  ti'^rcfore  not 
whetlier  acting  with  or  without  a  commission.^  tuie"  to^  saf-°' 

vage. 

Salvage  is  not  due  to  a  national  vessel  for  the  Salvage  not 
service  performed  by  a  recapture  from  the  enemy,  fionai  ^ssqi*" 
of  another  vessel  employed  in  the  public  service.  °?  j^^q^^^Jp'^J"^® 
This  rests  upon  the  obvious  princij^le  that  the  per-  tionai  vessel 
formance  of  such  a  service  is  not  only  the  duty  and 
obligation  of  the  vessel-of  war,  Init  is  in  the  direct 
line  of  the  business  to  which  it  is  devoted  on  be- 
half of  the  nation,  and  does  not  differ  in  principle 
from  the  service  rendered  by  one  ship  of  war  to  an- 
other in  battle.^ 

In  order  to  entitle  the  recovering  party  to  sal-  ^o  hazard 
vage,  it  is  not  essential  that  any  risk  should  have  countered  to 
been  encountered  in  the  service.     Therefore,  a  claim  Ifl^^  *°  ^^ 
to  military  salvage  is  due  where  a  vessel  taken  by 
the  enemy  is  purchased  at  sea,  and  brought  into  port 
for  restoration  to  the  owner.^ 

It  has  been  held,  that  where  a  vessel  of  the  enemy  Every  person 
is  taken  by  the  adverse  belligerent,  lost  again  by  a  rescue  has  a 
cruiser  of  the  enemy,  and  subsequently  recaptured,  ^^l^^  ^°^  ^^' 
the  recaptors  are  entitled  to  the  entire  property.* 

Every  person  aiding  and  abetting  and  assisting  * 
has  a  Ue}i  on  the  thinsr  saved.     He  has  his  action  in 
personam,  also,  to  recover  for  his  meiitorious  ser- 
vice, but  his  first  and  proper  remedy  is  in  rem. 

In  the  case  of  a  recapture,  where  the  property  is 
again  taken  by  the  enemy,  and  followed  by  con- 

'  The  Helen,   3  Eob.,   224;   The    Urania,  5  Rob.,  148;    The 
Progress,  Edwards,  211 ;   The  H<qj€,  Hay  &  Marriott,  216. 

*  The  Belle,  Edwards,  66. 
■      *  The  Henry,  Edwards,  162. 

^  The  John  and  Jane,  4  Rob.,  217  and  note. 


244  SALVAGE. 

deranation  in  an  enemy's  port,  if  that  condemnation 
be  subsequently  oveiTuled  by  an  order  of  release 
from  the  sovereign  power  of  the  state,  the  right  to 
salvage  is  revived  under  the  recapture.^ 

The  doctrine  It  is  a  familiar  principle  in  the  law  of  capture,  as 
sighf  ^applied  wc  liave  sceu,  that  vessels  of  war  in  sight  at  the 
to  recaptures  i[yq,q  of  the  Capture,  are  entitled  to  share  in  its 

as  basis  of  sal-  ... 

vage  claim,     benefits.      The    same    principle  is    applied  to  the 
right   of  salvage  in  the   case  of  recapture.      Na- 
tional ships  in  sight  are  regarded  as  joint-captors. 
There  is  a  reciprocity  in  the  rule  which  operates 
sometimes  to  the  advantage,  and  sometimes  to  the 
disadvantage,  of  every  vessel  in  the  service. 
Not  allowed        But  privateers  in  sight,  when  a  recapture  is  made 
in  s^gM  whTn  by  a  national  vessel,  are  not  allowed  to  share.   And 
recapture        heucc  the  rule  of  reciprocity  not  existins:  as  between 

made  by  na-  . 

tionai  siiip.  privatcers  and  national  vessels,  where  a  i-ecapture 
is  made  by  a  privateer,  a  national  vessel  being  in 
^  sight,  the  national  vessel  is  not  permitted  to  share. 
"  It  would  be  hard,"  says  Lord  Stowell,  in  a  case 
where  the  question  incidentally  arose,  "if  the  pri- 
vateer, being  the  actual  captor,  and  not  having  that 
reci})rocal  interest  in  other  cases,  should  be  deprived 
of  a  much  greater  proportion  of  the  reward,  and 
should  only  share  on  terms  of  reciprocity,  where  the 
king's  ship  is  only  the  constructive  recaptor,  horn 
the  mere  accident  of  being  in  sight,  perhaps  at  a 
great  distance,  and  unconscious  of  the  fact.  Now 
what  are  the  circumstances  of  the  present  case  ?  It 
did  appear  to  me,  on  the  evidence  offered  to  the 
the  court,  that  the  interposition  of  the  privateer 
was  not  fraudulent.     It  was  not  the  case  of  a  pri- 

•  The  Charlolle  Caroline,  1  Dod.,  192.      - 


SALVAGE.  245 

vateer  stepping  in  at  the  end  of  a  long  chase, 
perhaps  to  deprive  the  king's  ship  of  the  due  re- 
ward of  her  own  activity  and  -enterprise.  Here  it 
was  clear  that  both  were  in  actual  pursuit  of  the 
enemy.  It  was  not  a  constructive  recapture  on 
either  side.  There  was  a  concurrence  of  endeavor 
in  both,  though  the  pi'i vateer  came  up  first,  and 
struck  the  first  blow.  Considering  them  both, 
therefore,  as  joint  actual  recaptors,  I  see  no  rea- 
son why  I  should  take  the  case  out  of  the  common 
operation  of  that  principle  which  apportions  the  re- 
ward to  the  parties  according  to  their  respective 
forces."^ 

Revenue  cutters  have  been  held  to  be  entitled  Revenue-cut- 

.-,.-,  .  ters  entitled  aa 

to  salvage  on  recapture,  m  like  manner  as  private  private  ships. 
ships  of  war.^ 

Whether  fi'eio;ht  should  be  made  to  contribute  ^^.f}^}^^  ^^^' 

o  tributes  to  sal- 

to  the  salvage  in  case  of  a  recapture,  depends  upon  vage  when 
the  question  whether  the  freight  was  in  the  coui'se 
of  being  earned.  In  giving  freight,  the  court  does 
not  make  separations  as  to  minute  portions  of  it. 
If  a  commencement  has  taken  place  and  the  voyage 
is  subsequently  accomplished,  the  entire  freight  is 
included  in  the  valuation  of  the  property  on  which 
salvage  is  granted.^ 

Where  the  vessel  has  never  been  in  the  actual 
and  bodily  possession  of  the  recaptor,  no  salvage  is 
earned.*  And  in  order  to  entitle  to  sji.lvage  as 
upon  a  recapture,  the  property  must  li:.ve  been  in 

'  The  Wanstead,  1  Edwards,  369 ;  The  Providence,  ib.,  270 ; 
The  Dorothy  Foster,  6  Rob.,  88. 

""  The  Bdlona,  Edwards  63;   The  Sedulous,  1  Dodson,  253. 

«  The  Dorothy  Foster,  G  Rob.,  88. 

'  The  Edivurd  and  Mary,  3  Rob.,  305. 


246  SALVAGE. 

the  actual  or  constructive  possession  of  the  enemy. 
Salvage  is  not  allowed  merely  for  stopping  a  ship 
going  into  an  enemy's  port.^ 

Salvage  due        ^g  ^  principle  of  international  law,  military  salv- 

from  neutrals.  •!/>  i  i   •  r>  •• 

age  IS  due  irom  neutrals ;  and  m  cases  ot  restitution 
of  the  recaptured  property  of  neutrals,  the  courts 
are  at  liberty  to  assess  such  rates  of  compensation 
as,  in  their  judgment,  are  demanded  by  the  nature 
of  the  service  and  the  circumstances  of  the  particu- 
lar case,  and  are  not  limited  to  the  rates  fixed  by 
the  statutes,  which  apply  only  to  the  restitution, 
upon  recapture,  of  the  property  of  the  subjects  of 
the  nation  of  the  recaptors.^ 

Where  the  property  of  a  neutral  is  taken  as  a 
prize  by  the  enemy,  and  recaptured  by  the  adverse 
belligerent,  the  probability  of  its  condemnation, 
had  it  reached  the  port  and  been  subjected  to  the 
action  of  the  courts  of  the  country  of  the  captors,  is 
to  be  considered  in  determining  the  question  of 
salvage.  If  there  is  no  ground  for  supposing  that 
a  restitution  would  not  have  been  ordered,  then  it 
is  to  be  restored  on  the  recapture,  without  the  pay- 
ment of  salvao-e. 

Salvage  was  usually  allowed  upon  the  recapture 
by  British  vessels  of  neutral  property  taken  by 
French  cruisers  in  the  last  war,  because  there  was 
reason  to  apprehend  that  such  property  would,  in 
almost  all  cases,  be  condemned  by  the  French 
courts  of  admiralty  ;  and  such  assessments  of  salvage 
were  regarded,  under  the  circumstances,  although 

'  The  Ann  Green  and  car//o,  1  GallisoTi,  203. 
«  Marshall,  i1\  ;    The  Two  Friends,  1  Rob.,  271. 


EANSOM.  24Y 

an  exception  to  tlie  general  rule,  as  reasonable  and 
just  by  tlie  neutral  mercliants.-^ 

When  a  lawful  belligerent  had  become  possessed, 
by  lawful  means,  of  the  property  of  the  enemy,  it 
was  an  ancient  custom,  of  almost  every  nation,  to 
redeem  it  from  his  jDossession  by  the  payment  of  a^^^^°?^  p^^ 
ransom.     The  contract  of  ransom  has  fallen  greatly  statute  in 
into  disuse ;  and  by  statutes  in  Great  Britain,^  ran- 
soms are  expressly  prohibited  under  severe  penal- 
ties.    They  are  spoken  of  by  Lord  Stowell,  in  the 
case  of  the  ships  taken  at  Genoa,  as  subject  to  great 
abuse,  being,  in  the  common  acceptation,  contracts 
entered  into  at  sea  by  individual  captors,  and  liable 
to  be  abused,  to  the  great  inconvenience  of  neutral  J^^^^  th?iaw 
trade.     But  ransoms,  under  circumstances  of  ex-  of  nations 
treme  necessity,  are   yet  allowed ;  and  a   ransom  Mbited  by 
bill,  when  not  prohibited  by  express  statute,  is  a  ^^'^^^  ^^^ 
war  contract,  protected  by  good  faith  and  the  law 
of  nations.     Although  the   contract  of  ransom  is 
considered  in  England  as  tending  to  relax  the  ener- 
gies of  war,  and  to  deprive  cruisers  of  the  opportu- 
nities of  recapture,  yet  "  it  is,  in  many  views,"  says 
Chancellor  Kent,  "  highly  reasonable  and  humane. 
Other  maritime  nations  regard  ransom  as  binding, 
and  to  be  classed  among  the  few  commercia  helUy^ 

Ransom  has  not  been  prohibited  by  any  law  of  Not  prohibited 

1  The  Eleanor  Catherina,  4  Rob.,  156  ;  The  Waronskan,  2 
Rob.,  299;  The  Carlotta,  5  Rob.,  54;  The  Huntress,  G  Rob., 
104;  The  Samson,  6  Rob.,  410;  The  Barbara,  3  Rob.,  I7l  ; 
Abbot  on  Shipping,  Part  TIL,  c.  xi.,  §  13. 

2  43  Geo.  III.,  c.  c. ;  45  Geo.  III.,  c.  Ixxii. ;  22  Geo.  III.  c.  xxv. 
^  Kent's  Com.,  114 ;  vide  also  Azuni's  Maritime  Law,  c.  iv.,  art. 

G;  Emerigon,!.,  c.  xii.,  §  21;  Valin  XL,  art.  66;  Lo  Guidon,  c. 
n.,  art.  2 ;  Grotius,  Lib.  III.,  c.  xix. 


248 


RAN'so:jr. 


states^  ^°'*^*^  *^®  United  States,  and  has  been  recognized  as  a 
valid  contract  by  the  courts  of  that  country,  as  well 

Its  effect.  as  of  France  and  Holland.  The  effect  of  the  ran- 
som is  equivalent  to  that  of  a  safe  conduct  granted 
by  the  authority  of  the  state  of  the  captor ;  and  it 
is  binding  upon  the  commanders  of  other  cruisers 
of  the  belligerent  nation,  as  well  as  upon  those  of 
an  allied  nation,  by  the  implied  obligation  of  the 
treaty  of  alliance.  The  protection  of  the  ransomed 
vessel  is,  however,  limited  to  the  time,  as  well  as  to 
the  course  or  localities  prescribed  by  the  contract, 
unless,  by  stress  of  weather  or  unavoidable  neces- 
sity, the  time  has  been  exceeded,  or  the  course  de- 
parted from. 

The  captor  who  releases  his  capture  on  ransom, 
does  not  become  the  insurer  of  the  property,  except 
against  recapture  by  cruisers  of  his  own  nation  or 
allies.  Therefore,  if  the  ransomed  vessel  be  wi^ecked 
before  she  arrives  in  port,  the  ransom  bill  is  never- 
theless due. 

If  the  captor,  having  the  ransom  bill  on  board 
his  vessel,  should  himself  be  captured  by  the  enemy, 
the  ransom  becomes  part  of  the  lawful  conquest  of 
the  enemy,  and  is  discharged. 

These  princijDles  are  laid  do^vn  by  the  element- 
ary writers,^  and  have  been  frequently  recognized 
and  applied  by  the  courts  of  the  United  States.^ 

'  Pothier,  Traite  dn  droit  de  propriete,  Nos.  134,  135,  138, 
139;  Valiii,  Ord.  des  Prises,  art.  19. 

-  Goodrich  vs.  Gordon,  15  Johns.  R.,  6;  Miller  vs.  The  Reso- 
lutiou,  -2  iMllas,  15;  The  Lord  Wellim/ton,  2  Gallison,  104; 
Mais.^onnaire  et  ah.  vs.  Keating,  2  Gall.,  336 ;  Gerard  vs.  Hare, 
Peters's  C.  C.  R.,  142 ;  Moodie  vs.  Brig  Harriet,  Bees.  R.,  128. 


EECAPTUKE    AND    MILITARY    SALVAGE.  249 


EECAPTURE  AND  MILITARY  SALVAGE. 

[Se\^ral  cases  of  recapture  hj  public  ships  of 
the  United  States,  of  the  merchant  vessels  of  her 
citizens,  which  had  been  seized  by  rebel  cruisers, 
have  occurred  durino;  the  existina:  war. 

In  every  such  case,  the  merchant  owner,  without 
objection,  has  paid  the  military  salvage  provided 
by  statute,  of  one-eighth  the  value  of  the  property 
recaptured,  upon  its  restitution,  and  in  like  manner, 
as  if  the  original  capture  had  been  lawful.^ 

It  is  obvious,  that  had  objection  been  made  to 
the  validitv  of  such  claim,  it  could  not  have  been 
allowed  in  the  courts  of  the  United  States,  without 
involving  a  judicial  concession  of  belligerent  rights 
to  the  insurgents,  of  the  same  character,  and  to  like 
extent,  as  that  virtually  accorded  by  the  Executive 
department  of  the  government,  in  the  exchange  of 
rebel  captured  privateers,  as  prisoners  of  war. 

By  the  terms  of  the  Act  of  Congress  of  1800  ^  the 
compensation  awarded  as  salvage  for  the  recapture 
from  the  enemy,  of  a  public  ship,  or  of  a  merchant 
vessel,  whether  of  the  country  of  the  recaptors  or  a 
neutral,  is  allowed  upon  the  express  condition  that 
the  property  recaptured,  has  not  been  condemned  in 
the  courts  of  the  captors  prior  to  the  recapture ;  thus, 
in  effect,  resting  the  claim  to  compensation  upon  the 
lawfulness  of  the  original  capture,  and  its  successful 
defeat  by  recapture,  before  the  inchoate  right  to  the 
captured  property  had  become  absolute  by  a  decree. 

1  Vide  The  Mary  Alice,  The  Henry  C.  Brooks,  The  Lizzie  Wes- 
ton.    MS.  Decisions  U.  S.  Dist.  Court,  N.  Y. 

2  Vol.  2,  Statutes  at  Laige,  p.  16. 


250  RECAPTUEE   AND    MILITAllY    SALVAGE. 

How  far  the  courts  of  tlie  United  States  would 
be  justified  in  holding  lawful  the  captures  made  by 
insurgent  privateers, — by  decreeing  salvage  upon  the 
recapture,  and  restitution  of  the  captured  property, 
— by  reason  of  the  executive  action  of  surrender  as 
prisoners  of  war,  under  the  law  of  nations,  of  cap- 
tured privateers,  who  are  declared  to  be  pirates  by 
the  municipal  law,  may  admit  of  serious  doubt. 

The  right  vested  in  a  sovereign  nati'on,  engaged 
in  the  duty  of  suppressing  an  in-suTrection  which 
has  assumed  the  proportions  of  a  civil  war,  of  re- 
garding and  treating  the  insurgents,  either  as  rebels 
or  as  belligerents,  is  a  right  to  be  exercised  by  the 
executive  branch  of  the  government,  and,  from  its 
very  nature,  by  the  Executive  alone. 

It  is  a  right,  to  be  exercised  j^recisely  according 
to  the  dictates  of  a  varying  political  policy.  If, 
therefore,  the  Executive,  at  one  time,  sees  fit  to  allow 
an  exchange  of  captured  rebel  privateers,  as  prison- 
ers of  war,  it  by  no  means  follows  that  such  execu- 
tive action  should  be  taken  as  a  precedent  for  a 
subsequent  judicial  decree,  because,  at  an  after  pe- 
riod in  the  progress  of  the  war,  the  current  of  events 
may  have  ]3roduced  an  entire  change  of  political 
policy. 

Certain  rebel  privateersmen,  assuming  to  act 
under  commissions  from  Jefferson  Davis,  were  /  cap- 
tured while  committing  piratical  raids  upon  the 
ocean,  l)y  a  United  States  government  cruiser,  and 
carried  into  the  port  of  Philadelphia.  They  were 
there  tried  in  the  Federal  court,  and  convicted  as 
pirates,  under  the  municipal  law.  By  Executive 
interposition,  their  status  as  convicted  pirates,  lialde 
to  be  hanged,  was  changed  to  that  of  prisoners  of 


■RECAPTUEE    AKD    MILITARY    SALVAGE.  251 

war.  Tliis  was  in  the  summer  of  1861.  If,  at  any 
subse(|uent  period,  The  Alabama^  or  any  other  rebel 
cruiser,  should  be  captured,  and  brought  into  a  port 
of  the  United  States,  would  this  former  Executive 
action,  make  it  any  less  the  duty  of  the  Federal 
courts,  to  proceed  against  her  crew  as  pirates,  under 
the  municipal  law,  and  to  visit  upon  them  its 
severest  penalties,  unless  that  branch  of  the  gov- 
ernment which  controls  its  political  policy,  should 
again  interpose  ?     Surely  not. 

When  the  executive  department  of  the  govern- 
ment recognizes  the  l^elligerent  status  of  the  people 
of  a  foreign  nation,  it  is  the  duty  of  the  courts  to 
follow  such  recognition,  in  their  judicial  action,  be- 
cause it  is  the  announcement  of  a  permanent  politi- 
cal policy,  by  that  department  whose  province  it  is 
to  determine  such  ]3olicy. 

But  the  surrender  of  traitors  or  pirates,  as  prison- 
ers of  war,  in  the  progress  of  a  civil  conflict,  cannot 
be  regarded  in  any  such  light.  It  is  an  act  which 
is  the  result  of  a  temporary  policy  merely,  a  policy 
that  may  not,  and  should  not,  control,  the  duty  of 
judicial  tribunals,  to  continue  to  regard  the  insur- 
gents as  traitors,  j^unishable  by  the  municipal  law. 

In  the  former  edition  of  this  woi;k,  it  was  stated 
that  salvage  was  not  awarded  to  a  public  ship,  for 
the  recapture  'rom  the  enemy  of  another  public 
ship  or  vessel,  employed  in  the  public  service. 

Such  is  the  law  of  England.  By  the  2d  section  of 
the  act  of  Congress  last  cited,  salvage  by  the  law 
of  the  United  States,  is  granted  upon  the  recapture 
of  a  public  vessel,  which  "  shall  appear  to  have  be- 
fore belonged  to  the  United  States,"  in  like  manner 


252  EECAPTUEE   AND   iULITAEY    SALVAGE. 

as  the  same  is  allowed  upon  the  recapture  of  pri- 
vate property. 

The  reason  for  the  distinction,  as  established  by 
the  authorities  in  the  English  law,  is,  that  the  re- 
capture of  a  vessel  employed  in  the  service  of  the 
government,  is  an  obligation  of  a  vessel  of  war, 
lying  in  the  direct  path  of  the  duty  in  which  it  is 
engaged — a  duty  of  the  same  character,  and  equally 
imperative  as  that  of  rendering  aid  to  a  ship  of 
war  in  battle. 

The  soundness  of  this  reason  for  witholding  com- 
pensation as  salvage,  for  the  reca23ture  of  a  public 
vessel,  is  readily  recognized;  but  as  just  ground  for 
the  distinction,  between  the  recapture  of  public  and 
private  vessels,  it  is  not  so  easily  appreciated. 

Can  it  be  said  to  be  any  less  the  duty  of  the  na- 
val forces  of  the  government  to  succor,  and  protect 
the  ocean  commerce  of  its  citizens,  than  it  is  to  pro- 
tect public  property  upon  the  seas  ?  Indeed,  is  not 
the  duty,  considered  simply  as  an  obligation,  of  pre- 
cisely the  same  character,  differing  only  in  degree  ? 

The  capture  of  a  merchant  vessel  by  a  belligerent 
cruiser,  is  a  blow  struck  at  the  wealth  and  conse- 
quent means  of  resistance  of  the  adversary.  By  the 
recapture,  this  blow  is  averted. 

It  is  the  paramount  duty  of  a  vessel  of  war  to  go 
to  the  aid  of  another,  in  battle  with  the  enemy ; 
and  in  doing  so,  to  leave  a  caj)tured  merchant  ves- 
sel in  the  possession  of  an  enemy's  cruiser.  The  im- 
portance of  success  in  the  naval  conflict  exceeds  that 
of  the  recovery  of  the  merchant  vessel.  But,  sup- 
pose the  merchant  vessel  to  be  not  only  laden  Avitli 
a  precious  cai^go,  but  to  be  freighted  with  millions 
of  treasure,  it  is  easy  to  perceive  that  the  import- 


JOINT-CAPTUEE.  258 

ance  of  her  recapture  miglit,  for  the  moment,  out- 
weigli  that  of  aid  iu  the  pending  battle. 

It  is  obvious,  therefore,  that  the  duty  of -recap- 
tui-e  by  a  public  vessel,  is  apj^licable  no  less  to  pri- 
vate than  to  public  property,  and  the  policy  which 
withholds  salvage  compensation  for  the  performance 
of  this  duty  m  the  one  case,  is  precisely  the  same 
as  it  is  in  the  other. 

An  attempt  "was  made  at  the  last  session  of  the 
Congress  of  the  United  States,  to  obtain  a  repeal  of 
the  act  providing  for  the  payment  of  salvage  in 
cases  of  recapture,  except  upon  the  recapture  of  neu- 
tral jDroperty. 

The  wisdom  and  justice  of  such  repeal  would 
seem  to  be  too  apparent  to  justify  opposition. 


JOINT-CAPTURE. 

[Since  the  publication  of  the  former  edition  of  this 
work,  no  other  change  has  been  effected  in  the  laws 
of  the  United  States,  in  relation  to  joint-capture, 
than  by  the  statute  provision,  which  substitutes  the 
words  "  within  signal  distance ''  for  the  words  "  in 
sight,"  in  the  designation  of  the  vessels  entitled  to 
share  as  joint-captors  of  a  prize. 

If  it  were  the  purpose  of  this  change  to  render 
the  designation  more  definite,  it  may  be  doubted  if 
such  purpose  has  been  accomplished. 

What  is  to  be  regarded  as  "  signal  distance,"  is  a 
question  for  judicial  determination ;  and  it  is  appa- 
rent that  this  determination  must  vary  with  the 
varying  circumstances  of  fog,  and  storm,  and  duvk- 
ness,  and  intervening  obstructions,  which  may  be 
the  attending  incidents  of  a  capture. 


254  RESCUE. 

The  rigMs  of  joint-capture  by  tlie  concert  and  mate- 
rial co-operation  of  vessels  which  are  neither  in  sight, 
nor  within  signal  distance,  at  the  time  of  the  capture, 
of  course  remain  unaffected  by  the  statute  provision. 

In  several  im];)ortant  cases  of  capture  made  in  the 
Gulf  of  Mexico,  by  the  United  States  vessel  of  war 
New  London^  during  the  present*  war  in  the  Uni- 
ted States,  the  public  ships,  Masmchusetts  and 
R.  li.  Cuylei\  were  admitted,  by  judicial  decree, 
to  the  rights  of  joint-captors,  though  not  in  sight 
or  within  signal  distance  when  the  captures  were 
made,  solely  in  recognition  of  their  rights  as  co-oper- 
ators, by  previous  concert.^ 


RESCUE. 

[In  the  former  edition  of  this  work,  it  was  stated, 
that  if  a  neutral  vessel  of  commerce  should  be  cap- 
tui'ed  by  a  belligerent  cruiser,  and  a  small  force  be 
placed  on  board,  with  a  prize  master,  to  carry  her 
into  port  for  adjudication,  an  attempt  on  the  part 
of  the  master  and  crew  of  the  captured  vessel  should 
be  made  to  effect  a  rescue ;  such  attempt  would,  of 
itself,  subject  the  vessel  to  condemnation,  which 
might  otherwise  be  entitled  to  restitution. 

Such  is  unquestionably  the  well-settled  law  of 
nations. 

It  is  thus  distinctly  declared,  by  that  learned 
master  of  prize  law,  Mr.  Justice  Story,  in  his  brief 
but  valuable  treatise  on  prize  law,  published  in  the 
American  Encyclopedia.^ 

'  Vide  M8.  Decisions — the   steamer  Henry  Lewis,  the  steamer 
Anna,  and  seven  other  vessels — U.  S.  Dist.  Court,  New  York. 
*  Am.  Enc,  Vol.  10,  p.  355. 


THE   EMILY    ST.    PLERKE.  256 

"  Tlie  rio;lit  of  searcli  draws  after  it  the  rio-lit  to 
capture  and  send  in  tlie  visited  ship  for  adjudica- 
tion, whenever  (though  the  ship  and  cargo  are 
under  neutral  papers)  there  are  circumstances  of 
just  suspicion,  as  to  her  real  character. 

"  The  neutral,  under  such  circumstances,  is  bound 
to  submit,  and  wait  the  regular  result  of  the  adju- 
dication of  the  proper  tribunals.  If,  after  the  cap- 
ture, the  neutral  crew  rise,  and  regain  the  neutral  ^ 
ship  from  the  possession  of  the  captors,  that  alone 
is  a  hostile  act ;  and  however  innocent  in  other  re- 
spects the  shijD  and  cargo  may  be,  they  are  justly 
subjected  thereby  to  confiscation." 

A  lawful  rescue  can  only  be  made  by  a  captured 
belligerent. 

Such  a  rescue  is  deemed  a  meritorious  act,  be- 
cause purely  voluntary  on  the  part  of  those  cap- 
tured, and  not  their  duty,  as  is  that  of  recapture, 
which  is  the  recovery  by  a  friendly  force,  of  a  prize 
taken  by,  and  in  the  possession  of,  an  enemy. 

Such  beino;  the  established  rule  of  international 
law,  its  repudiation  was  not  to  be  expected  on  the 
part  of  a  great  nation  whose  authorities  and  prece- 
dents have,  more  largely  than  any  other,  contributed 
to  the  erection  of  that  Ijeautiful  fal:)ric,  which  up- 
holds the  great  commonwealth  of  civilized  states. 

The  British  ship,  Emily  St.  Pierre^  in  attempting 
to  violate  the  Ijlockade  of  the  port  of  Charleston, 
South  Carolina,  was  caj^tured  by  a  lawful  cruiser 
of  the  United  States  government. 

A  prize  master,  with  a  small  force,  were  placed 
on  board,  and  proceeded  to  conduct  the  prize  into 
a  port  of  adjudication. 

Relying  too  much  upon  the  good  faith  and  sense 


256  RESCUE. 

of  obligation  to  the  supreme  law,  of  the  captured 
master  and  his  crew,  the  captors  humanely  forebore 
to  render  an  unlawful  rescue  impossible,  by  a  con- 
finement of  their  j)ersons. 

Had  any  well-grounded  suspicions  existed,  of  a 
want  of  that  integrity,  which  the  captors  had  a 
right  to  require,  their  rigid  confinement  would  have 
been  perfectly  justifiable. 

Taking  advantage  of  their  superior  numbers,  and 
of  the  generous  but  misplaced  forbearance  of  the 
captors,  the  captui-ed  master  and  crew,  forcibly  and 
fraudulently,  regained  the  j)Ossession  and  control  of 
the  shij),  and  with  the  prize  master,  and  his  small 
force  on  board,  proceeded  mth  her  to  Liverpool, 
England. 

Arriving  there,  it  might  not  unreasonably  have 
been  expected,  that  the  public  authorities,  indignant 
at  this  flagrant  outi-age  by  a  neutral  upon  belliger- 
ent rights,  would  have  needed  no  prompting  to  in- 
duce their  immediate  and  efficient  vindication  of 
the  violated  law. 

But  the  ship  was  a  British  ship,  and  was  laden 
with  a  cargo  which  served  to  feed  British  manufac- 
tories. And  this  infraction  of  public  law,  this  act 
so  criminal  by  the  law  of  nations,  as  of  itself  to 
suT)ject  the  vessel  and  cargo  to  confiscation,  was 
hailed,  by  common  consent,  as  an  act  of  commend- 
able bravery,  not  only  lawful,  but  highly  merito- 
rious and  honorable. 

At  public  assemblages,  receiving  the  sanction 
of  pul)lic  men,  this  British  ship  master  and  his 
crew,  were  laden  with  encomiums,  and  rich  pecu- 
niary rewards,  and  the  Avorld  has  yet  to  learn  of 
the  utterance  of  any  word  of  disapprobation  of  this 


THE    EMILY    ST,    PEEEEE.  257 

hostile  act,  by  tHe  neutral  nation  of  tlie  guilty- 
subjects. 

The  minister  of  the  belligerent  nation,  resident  at 
the  Court  of  St.  James,  lost  no  time  in  calling  the 
attention  of  Her  Majesty's  government  to  the  sub- 
ject. The  writer  has  not  had  an  opportunity  of 
consulting  the  correspondence  which  ensued  be- 
tween Mr.  Adams  and  Earl  Eussell — but  it  is  un- 
derstood that  the  expectations  expressed  by  the  for- 
mer, that  the  British  government  would  direct  the 
surrender  of  the  captured  property,  and  the  argu- 
ments and  authorities  urged  as  the  basis  of  his  ex- 
pectations, were  met  by  a  peremptory  denial  of  the 
obligation  on  the  part  of  the  latter. 

Upon  the  commencement  of  the  civil  war  in  the 
United  States,  Great  Britain  hastened  to  announce 
her  position,  as  that  of  neutrality,  between  lawful 
belligerents. 

The  proclamation  of  the  Queen  was  forthwith 
issued,  in  which  it  was  said :  "  We  have  declared  our 
royal  determination  to  maintain  a  strict  and  impar- 
tial neutrality  in  the  contest  between  the  said  con- 
tending jiarties."  And  again,  in  this  same  procla- 
mation, the  British  queen  says :  "  We  do  hereby 
warn  all  our  loving  subjects,  and  all  persons  whatso- 
ever, entitled  to  our  protection,  that  if  any  of  them 
shall  presume,  in  contempt  of  this,  our  royal  procla- 
mation, and  of  our  high  displeasure,  to  do  any  acts 
in  derogation  of  their  duty,  as  subjects  of  a  neutral 
sovereign  in  the  said  contest,  or  in  violation  or  in 
contravention  of  the  law  of  nations,  as  for  examj)le," 
"  by  breaking  or  attempting  to  break  any  blockade, 
lawfully  and  actually  established  by  or  on  behalf  of 
either  of  the  said  contending  parties,  all  persons  so 
17 


258  RESCUE. 

offendino-,  will  incur  and  be  liable  to  the  several 
penalties  and  penal  consequences,  by  the  law  of  na- 
tions in  that  bebalf  imposed  and  decreed." 

And  in  the  same  proclamation  the  British  queen 
adds : 

"  And  we  do  hereby  declare  that  all  our  subjects, 
and  persons  entitled  to  our  protection,  who  may 
misconduct  themselves  in  the  premises,  will  do  so 
at  their  peril,  and  of  their  own  wrong,  and  that  they 
will  in  no  wise  obtain  ant  protection  from  us 
against  any  liabilities  or  penal  conseciiences,  but 
will,  on  the  contrary,  incur  our  high  displeasiwe  by 
such  misconduct." 

If  the  law  of  nations,  upon  the  subject  of  the  res- 
cue of  a  captured  neutral  vessel,  for  the  violation  of 
a  bellisferent  blockade,  has  been  here  correctlv  sta- 
ted,  it  would  be  a  hopeless  task  to  reconcile  the 
course  of  the  British  government  in  the  case  of  the 
Emily  St.  Pierre,  with  a  sincere  regard  for  the  obli- 
gations of  neutrality  under  the  law  of  nations,  or 
with  the  solemnly  proclaimed  determination  of  the 
British  Queen,  that  her  subjects  offending  against 
that  law,  ^^will  in  no  wise  oUain  her  pi'otectionr 


NEUTEALS.  259 


CHAPTER  V. 

Of  the  Effect  of  Wak  upoisr  the  Commerce 
OF  Neutrals — and  herein  of  Blockade — of 
Contraband  of  War,  and  of  the  Right  of 
Visitation  and  Search. 

Neutral  nations  are  those  wliich,  in  time  of  war,  who  are  neu- 
take  no  part  in  the  contest,  hut,  maintaining  a  strict 
impartiality  between  the  belligerents,  render  assist- 
a,nce  to  neither.  ■ 

The  general  commercial  rights  of  neutrals  have  Their  genera] 
been  thus  stated  by  Lord  Erskine  in  his  speech  of  righ^!^^^' 
March  8th,  1808,  upon  the  orders  in  council :  "The 
public  law  establishes,  that  countries  not  engaged 
in  war,  nor  interposing  in  it,  shall  not  be  affected 
by  the  differences  of  contending  nations;  but,  to 
use  the  very  words  of  the  eminent  judge  who  now 
presides  with  so  much  learning  in  the  Court  of 
Admiralty  (Sir  Wm.  Scott — Lord  Stowell),  'upon 
the  brealvin-o;  out  of  war,  it  is  the  rig-ht  of  neutrals 
to  carry  on  their  accustomed  trade,  with  an  excep- 
tion of  the  particular  cases  of  a  trade  to  blockaded 
ports,  or  in  contraband  articles,  and  of  their  ships 
being  liable  to  visitation  and  search.' " 

Under  this  succinct  but  comprehensive  statement 
of  the  general  commercial  rights  of  neutrals,  the 
subjects  for  consideration  in  this  chapter  are  clearly 
indicated.  It  is  the  right  of  neutrals  to  carry  on 
their  accustomed  trade,  which  suggests  the  first 
topic  for  review. 

It  has  ever  been  the  policy  of  nations  to  preserve.  Coasting  and 

•  ,^      '      ^  !•  r»/ii  i*  i_      ^  ±i     '     colonial  trade. 

With  jealous  exclusiveness,  tor  the  benent  ot  tJieir 


260  NEUTRALS. 

owu  citizens,  tlie  traffic  carried  on  between  ports  of 
their  own  coast,  and,  as  far  as  practicable,  tliat  with 
their  colonial  possessions. 

It  has  been  the  practice,  in  time  of  war,  for  the 
belligerent,  to  permit  neutrals  to  enjoy  this  com- 
merce. 

The  impossibility  of  determining  whether  such 
permission  is  granted  in  good  faith  and  with  honest 
designs,  or  whether  it  is,  as  it  is  well  known  to  be, 
in  the  vast  majority  of  cases,  a  permission  allowed 
with  the  collusive  and  fraudulent  design  of  protect- 
ing the  enemy's  property  by  a  neutral  shield,  and 
the  incessant  liability  to  abuse,  incident  to  such 
Neutrals  ex-  permission,  has  resulted  in  the  establishment  of  the 

eluded   there-  t         ..-,         a  ,     ,    ^  i«  /»  ±nj^ 

from.  general  principle  oi  total  exclusion  oi  neutrals  irom 

the  enemy's  coasting  and  colonial  trade. 

Under  this  general  rule  of  exclusion,  it  is  con- 
sidered, that  when  a  neutral  presents  himself  in  the 
capacity  of  a  trader  from  23ort  to  port,  or  with  the 
colonies  of  the  enemy,  he  presents  himself  as  an 
ally,  as  a  willing  and  active  instrument  of  the 
enemy,  rather  than  as  a  neutral.  He  is  regarded 
as  depar.ing  fi'om  the  line  of  impartiality  Avhich 
distinguishes  a  neutral,  by  engaging  in  the  business 
of  relieving  one  belligerent  from  the  extremities  to 
which  he  has  been  reduced  by  the  lawful  operations 
of  the  other — and  being  so  regarded,  is  so  acc^ord- 
ingly  dealt  with. 
Character  and  The  character  and  the  reasons  for  the  rule  of 
7niTof  exciu^  exclusiou  of  ucutrals  from  a  commerce  in  war, 
which  they  have  been  unaccustomed  to  enjoy  in 
time  of  peace,  are  clearly  and  ably  set  forth  by 
Lord  Stowell  in  an  early  case  involving  the  ques- 
tion : 


Bion. 


NEUTRALS,  261 

"Is  there  notMng,"  said  lie,  "like  a  departure 
6"oin  the  strict  duties  imposed  by  a  neutral  char- 
acter and  situation,  in  stepping  in  to  the  aid  of  the 
depressed  party,  and  taking  up  a  commerce  which 
so  peculiarly  belonged  to  himself,  and  to  extinguish 
which  was  one  of  the  principal  objects  and  j^roposed 
fruits  of  victory  ?  Is  not  this,  by  a  new  act  and  by 
an  interposition,  neither  known  nor  permitted  by 
that  enemy,  in  the  ordinary  state  of  his  affairs,  to 
give  a  direct  opposition  to  the  eiforts  of  the  con- 
queror, and  to  take  off  that  pressure  which  it  is  the 
very  purpose  of  war  to  inflict,  in  order  to  compel  tlie 
conquered  to  a  due  sense  and  observance  of  justice  ? 

"  As  to  the  coasting  trade,  supposing  it  to  be  a 
trade  not  usually  open  to  foreign  vessels,  can  there 
be  described  a  more  effective  accommodation  that 
can  be  given  to  an  enemy  during  a  war,  than  to 
undertake  it  for  him  during  his  own  disability? 
Is  it  nothino^  that  the  commodities  of  an  extensive 
empire  are  conveyed  from  the  parts  where  they 
grow  and  are  manufactured,  to  other  parts  where 
they  are  wanted  for  use  ?  It  is  said,  that  this  is 
not  importing  any  thing  new  into  the  country,  and 
it  certainly  is  not :  but  has  it  not  all  the  effects  of 
such  an  importation?  Suj^pose  that  the  French 
navy  had  a  decided  ascendant,  and  had  cut  off  all 
British  communication  between  the  northern  and 
southern  parts  of  this  island,  and  that  •  neutrals 
interj^osed  to  bring  the  coals  of  the  north,  for  the 
supply  of  the  manufacturers  and  for  the  necessities 
of  domestic  life  in  this  metropolis,  is  it  possible  to 
describe  a  more  direct  and  more  effectual  opposition 
to  the  success  of  French  hostility,  short  of  an  actual 
military  assistance  in  the  war  ?" 


262  NEUTRALS. 

The  duties  of  neutrals  are  clearly  expressed  by 
Lord  Herrick's  letter  to  Mr.  Hist  in  the  following 
words : 

"Neutrality,  properly  considered,  does  not  con- 
sist in  taking  advantage  of  every  situation  between 
belligerent  states,  by  which  emolument  may  accrue 
to  the  neutral,  whatever  may  be  the  consequences 
to  either  belligerent  party;  but  in  observing  a 
strict  and  honest  impartiality,  so  as  not  to  afford 
advantage  in  the  war,  to  either ;  and  particularly, 
in  so  far  restraining  its  trade  to  the  accustomed 
course,  which  is  held  in  time  of  peace,  as  not  to 
render  assistance  to  one  belligerent  in  escaping  the 
effect  of  the  other's  hostilities.  The  duty  of  a  neu- 
tral is  '  71011  interponere  se  hello,  non  lioste  immin- 
ente  Jwstem  eripere^  and  yet,  it  is  manifest,  that 
lending  a  neutral  navigation  to  carry  on  the  coast- 
ing trade  of  the  enemy,  is  in  direct  contradiction  to 
this  definition  of  neutral  obligations,  as  it  is,  in 
effect,  to  rescue  the  commerce  of  the  enemy  from 
the  distress  to  which  it  is  reduced  by  the  superior- 
ity of  the  British  navy;  to  assist  his  resources, 
and  to  prevent  Great  Britain  from  bringing  him  to 
reasonable  terms  of  peace."^ 

Consequence  A  violation  of  the  rule  of  exclusion  of  neutrals 
Sonl^ancrmod-  from  the  coastiug  trade  of  the  enemy,  was  formerly 
ern  relaxation  yigited  with  the  penalty  of  confiscation  of  the  neu- 

01  the  ancient  ^  •' 

rule  of  coniis-  tral  property. 

^  ^""'  In  modern  times,  and  by  special  ordinances,  the 

penalty  for  such  violation  has  been  limited  to  the 
forfeiture  of  the  freight,  which,  we  have  seen  (when 

'  The  Emanuely  1  Rep.,  296. 


NEUTRALS.  263 

considering  tlie  general  subject  of  captures),  would 
be  payable,  under  ordinary  circumstances,  by  the 
captor  to  the  neutral  ship-owner.  This  relaxation 
of  the  former  rule,  is  regarded  as  a  great  leniency  to 
the  neutral,  detected  in  interfering  with  a  trade  not 
legally  permitted  to  him,  which  formerly  subjected 
his  vessel  to  confiscation  as  well  as  his  freight  to 
forfeiture. 

The  ancient  law  upon  this  subject,  and  its  mod- 
ern modification,  are  admirably  collated  and  digest- 
ed by  the  king's  advocate,  in  an  important  case  in 
the  British  admiralty,  to  which  case  as  well  as  to 
another.  Dr.  Robinson,  the  reporter,  has  appended  a 
valuable  note.^ 

The  relaxation,  however,  of  the  ancient  penalty  Ancient  rule 
is  not  permitted  to  be  applied,  where  there  are  cases  of  specT- 
circumstances  of  specific  fraud  on  the  part  of  the  ^^  ^'"^"'^• 
neutral,  in   addition  to  the  illicit  character  of  the 
trade  in  which  he  is  engaged — such  as  the  carrying 
of  false  paj)ers.     In  such  cases  the  ancient  rule  of 
confiscation  is  applied  in  all  its  rigor.^ 

Analogous  in   principle  to  the  rule  which   ex-  Rule  of  exciu- 

iT  ,      -I      n  j1  j  '  ji  n        1     IT    sion  of  neutrals 

eludes  neutrals  irom  the  coasting  trade  oi  a  belli-  from  the  coio- 
gerentjis  that  which  excludes  them  from  the  colonial  H^^^^^^  l^^ 
trade.     In  a  case  already  cited.  Lord  Stowell,  with  coasting  trade 
his  usual  learning  and  clearness  of  statement,  dis- 
cusses the  policy  and  reasons  of  the  rule  of  pro- 


'  The  Johanna  Tholen,  6  Rob.,  72  ;  The  Edward,  4  Rob.,  58  ; 
The  Huffnuiui,  2  Rob.,  68 ;  vide  also  Dr.  Robinson's  note  to  that 
case,  and  also  another  note  to  case  in  6  Rob.,  250. 

^  The  Menezer,  6  Rob.,  252  ;  The  Carolina,  3  Rob.,  75 ;  The 
Pha'uix,  3  Rob.,  191. 


264  XEUTEALS. 

hibition  of  neutrals  from  tlie  colonial  trade  of  bel- 
ligerents,  as  follows  •} 

"  Upon  the  breaking  out  of  a  war,  it  is  the  right 
of  neutrals  to  carry  on  their  accustomed  trade, 
with  the  exception  of  the  particular  cases  of  a 
trade  to  blockaded  ports,  or  in  contraband  articles 
(in  both  which  cases  their  propertj^  is  liable  to  be 
condemned),  and  of  their  ships  being  liable  to  visi- 
tation and  search,  in  which  case,  however,  they  are 
entitled  to  freight  and  expenses. 

"  I  do  not  mean  to  say,  that  in  the  accidents  of 
war,  the  property  of  neutrals  may  not  be  entangled 
and  endangered.  In  the  nature  of  human  connec- 
tions, it  is  hardly  possible  that  inconveniences  of 
this  kind  should  be  altogether  avoided.  Some 
neutrals  will  be  unjust!}'  engaged  in  covering  goods 
of  the  enemy,  and  others  will  be  unjustly  suspected 
of  doing  it.  These  inconveniences  are  m6re  than 
fully  balanced  by  the  enlargement  of  their  com- 
merce. 

"  The  trade  of  the  belligerents  is  usually  inter- 
rupted, in  a  great  degree,  and  falls  in  the  same  de- 
gree, into  the  lap  of  neutrals.  But,  without  refer- 
ence to  accidents  of  the  one  kind  or  the  other,  the 
general  rule  is,  that  the  neutral  has  a  right  to  carr}- 
on,  in  time  of  war,  his  accustomed  trade,  to  the 
utmost  extent  of  which  that  accustomed  trade  is 
capable.  Very  diiferent  is  the  case  of  a  trade 
which  the  neutral  has  never  possessed,  which  he 
holds  by  no  title  of  use  or  habit,  in  times  of  peace, 
and  which,  in  fact,  can  obtain  in  war  by  no  other 


'  The  Uni'inuel,  2  Rob.,  197;  vide  also  Lord  Erskine's  speech 
on  the  Orders  in  Council,  March  Sth,  1808. 


XEUTIIALS.  265 

title  than  by  tlie  success  of  the  one  belligerent 
against  the  other,  and  at  the  expense  of  that  very- 
belligerent  under  whose  success  he  sets  up  his  title. 
And  such  I  take  to  be  the  colonial  trade,  general- 
ly speaking. 

"  What  is  the  colonial  trade,  generally  speaking  ? 
It  is  a  trade  generally  shut  up  to  the  exclusive  use 
of  the  mother  country  to  which  the  colony  belongs ; 
and  this  is  a  double  use — that  of  supplying  a  mar- 
ket for  the  consumption  of  native  commodities,  and 
that  of  furnishing  to  the  mother  country  the  pecu- 
liar commodities  of  the  colonial  regions.  Upon 
the  interruption  of  a  war,  what  are  the  rights  of 
belligerents  and  neutrals,  respectively,  with  regard 
to  colonial  territories  ?  It  is  an  indubitable  right 
of  a  belligerent  to  possess  himself  of  such  places, 
as  of  any  other  possession  of  the  enemy.  This  is 
his  common  rig-ht ;  but  he  has  the  certain  means  of 
carrying  such  right  into  effect,  if  he  has  a  decided 
superiority  at  sea.  Such  colonies  are  dependent 
for  their  existence,  as  colonies,  on  foreign  supplies. 
If  they  cannot  be  supplied  and  defended,  they  must 
fall  to  the  belligerent,  of  course ;  and  if  the  bel- 
ligerent chooses  to  apply  his  means  to  such  an  ob- 
ject, what  right  has  a  third  party,  perfectly  neutral, 
to  step  in  and  prevent  the  execution  ?  No  existing 
interest  of  his  is  affected  by  it.  He  can  have  no 
right  to  apply  to  his  own  use  the  beneficial  conse- 
quences of  the  mere  act  of  the  belligerent,  and  to 
say,  true  it  is,  you  have,  by  force  of  arms,  forced 
such  places  out  of  the  exclusive  possession  of  the 
enemy,  but  I  will  share  the  benefit  of  the  conquest, 
and  by  sharing  its  benefits,  prevent  its  progress ; 
you  have,  in  effect,  and  by  lawful  means,  turned  the 


266  '  JVTEUTEALS. 

enemy  out  of  the  possession  wliicli  lie  had  exclu- 
sively maintained  against  the  whole  world,  and 
with  whom  we  had  never  presumed  to  interfere, 
but  we  will  interpose  to  prevent  his  absolute  sur- 
render by  tlie  means  of  that  very  opening  which 
the  prevalence  of  your  arms  has  effected.  Supplies 
shall  be  sent,  and  their  products  be  exported.  You 
have  lawfully  destroyed  his  monopoly,  but  you 
shall  not  be  permitted  to  possess  it  yourself;  we 
insist  to  share  the  fruits  of  your  victories,  and  your 
blood  and  treasure — not  for  your  own  interest,  but 
for  the  common  benefit  of  others.  Upon  these 
grounds,  it  cannot  be  contended  to  be  a  right  of 
neutrals  to  intrude  into  a  commerce  which  had 
been  uniformly  shut  against  them,  and  which  is 
now  forced  open  merely  by  the  pressure  of  war; 
for  when  the  enemy,  under  an  entire  inability  to 
supply  his  colonies  and  to  export  their  products, 
affects  to  open  them  to  neutrals,  it  is  not  his  will, 
but  his  necessity,  that  changes  his  system;  that 
change  is  the  direct  and  unavoidable  consequence 
of  the  compulsion  of  war ;  it  is  a  measure,  not  of 
French  counsels,  but  of  British  force."  Upon  these 
grounds,  sentence  of  condemnation  was  ordered  in 
the  case  under  consideration.  And  in  a  subsequent 
case,  the  doctrines  thus  enunciated  by  Lord  Stow- 
ell,  were  fully  confirmed  by  the  Com-t  of  Appeal, 
in  which  the  Lord  Chancellor  pronounces  the  opin- 
ion thus  decisively : 

"  It  has  already  been  pronounced  to  be  the  opin- 
ion of  this  court,  that  by  the  general  law  of  na- 
tions, it  is  not  competent  in  neutrals  to  assiune  in 
time  of  war,  a  trade  with  the  colony  of  the  enemy 
which  was  not  permitted  in  time  of  peace ;   and 


NEUTEALS.  267 

ujyjLer  tliis  general  position,  tlie  court  is  of  opinion 
tb.'t  tMs  ship  and  cargo  are  liable  to  confiscation."* 

The  rule  which  prohibits  neutrals  from  engaging  When  the  co- 
in the  colonial  trade  of  belligerents,  rests  upon  the  permitted  to 
assumption  that  their  permission  to  do  so  by  the  Se'oJ^eaee, 
ijarent  of  the  colony,  results  from  a  relaxation  on  the  rule  of 

7  T  -,        \  -,       .  ,  1  1      •      prohibition 

its  part  of  the  rule  ot  exclusion  irom  sucn  trade  m  does  not  ope- 

"XTTi  ii  !>  •         ^  '   J.    rate  in  time  of 

time  ot  peace.     W  here,  therefore,  previously  exist-  ^^r. 
ing  commercial  relations,  resulting  from  treaty  or 
otherwise,   permitted   such   commerce  in  time  of 
peace,  the  doctrine  of  prohibition  in  time  of  war 
does  not  apply. 

So  it  was  held,  in  the  case  of  a  neutral  ship,  sail- 
ing between  France  and  Senegal,  then  a  French 
colony — it  having  been  ascertained,  upon  much  in- 
vestigation, that  France  had  been  accustomed  to 
leave  open  the  trade  of  Senegal  to  foreign  ships,  as 
well  before  as  after  the  war — that  the  vessel  should 
be  restored  to  the  neutral  claimants.^     The  rule  of  The  estabiish- 

.       ment  of  the  re- 

prohibition  of  trade  by  neutrals  with  the  colonies  public  of  the 
of  the  enemy,  was  first  established  in  a  case  which  the^  origin^  of 
arose  in  1756,  and  is  therefore  called  "the  rule  of  '.fthefuif  of 
1756."      The   relaxations   of   the   rule    originated  prohibition, 
chiefly  in  the  great  change  which  took  place  in  the 
commerce  of  the  world,  by  the  permanent  estab- 
lishment of  the  independent  re23ublic  of  the  United 
States  on  the  continent  of  America. 

By  reason  of  that  event,  the  ships  of  the  United 
States  were  admitted  to  trade  in  some  articles,  and 
on  certain  conditions  with  the  colonies  both  of  Eng. 
land  and  France.     Such  were  the  established  com- 


'  The  Wllhelmina,  4  Rob.,  Appendix  4. 
*  The  Juliana,  4  Rob.,  321. 


268  NEUTRALS. 

mercial  relations  between  tlie  countries  in  time  cS 
peace.  The  application  of  the  strict  rule  of  prohib- 
ition would  therefore  have  operated  to  abridge  the 
acquired  and  customary  commerce  of  Americans. 

By  reason  of  representations  made  by  the  United 
States  government,  orders  were  issued  in  1*794  by 
Great  Britain  during  the  then  existing  war  with 
France,  apparently  designed  to  direct  British  cruis- 
ers to  exempt  American  ships  from  capture,  which 
were  trading  between  their  ovni  country  and  the 
French  colonies.  In  consequence  of  this  relaxation 
in  favor  of  the  United  States,  it  was  in  1798  further 
extended  by  concessions  in  favor  of  the  neutral  states 
of  Europe. 

By  this  relaxation  of  the  rigid  rule  of  prohibition, 

neutral  vessels  were  allowed  to  carry  on  a  direct 

commerce  between  the  colony  of  the  enemy  and 

their  own  country. 

The  appiica-       Tliis  is  the  extent  of  the  relaxation,  and  upon  the 

rule,  and  the  rule  and  the  exceptions  much  discussion  has  arisen 

exceptions  in   •  •  ,        .  i 

particular       '^^  many  important  cases.^ 

oases.  i^  a  (.g^QQ  before  cited,  it  was  determined  that 

trade  was  unlawful  carried  on  directly  between  the 
colony  and  the  parent  state  of  the  enemy.^ 

So,  too,  was  held  to  be  a  trade  between  the  coun- 
try of  the  enemy  and  the  colony  of  his  ally.  And 
a  trade  between  the  settlement  of  one  enemy  to/ the 
colony  of  another,  was  decided  to  fall  within  the 
same  principle.^ 

Under  the  judicial  construction  of  the  relaxation 
of  the  rule,  it  was  held,  that  a  neutral  ship  trading 

'  The  Emanuel,  2  Rob.,  186.  ^  The  Rose,  4  Rob.,  App. 

^  The  New  Adventure,  4  Rob.,  App. ;  The  Wilhelmina,  4  Rob., 
App.  4. 


]o:uTRALS.  269 

between  a  hostile  colony  and  European  port,  whicli 
was  neither  a  port  of  the  neutral  nor  of  the  nation 
of  the  captor,  was  not  within  the  terms  of  the  ex- 
ception, and  a  condemnation  ensued. 

But  in  two  other  cases  of  United  States  ships, 
captured  on  voyages  from  a  hostile  colony  in  the 
West  Indies  to  a  neutral  West  India  colony,  the 
exception  was  applied  and  the  ships  were  released.^ 
This  was  rather  upon  the  letter  of  the  instructions 
to  cruisers,  than  from  the  true  spirit  of  the  excep- 
tion, which  would  seem  to  have  justified  their  con- 
fiscation. But  the  instructions  directed  the  captiu-e 
only  of  ships  coming  from  the  hostile  colonies  to 
Europe. 

In  another  case  of  a  Swedish  ship,  captured  on  a 
voyage  from  a  hostile  colony  to  a  neutral  American 
port,  the  court  refused  to  apply  the  exception,  and 
the  ship  was  condemned.^  The  only  apparent  dif- 
ference between  this  and  the  two  preceding  cases 
is,  that  they  were  American,  and  the  latter  was  a 
Swedish  ship.  Certainly  the  one  was  not  more 
than  the  other  out  of  the  letter  of  instruction,  and 
not  within  the  spirit  of  the  exception  to  the  rule  of 
prohibition.  In  another  case,  in  which  a  ship  was 
captured  on  a  voyage  being  made  in  good  faith  be- 
tween a  hostile  colony  and  the  port  of  the  neutral, 
it  was  held  to  be  the  precisely  excepted  case,  and 
the  vessel  was  restored.^ 

In  another  case,  a  capture  was  made  of  a  vessel 
trading  ^vith  a  hostile  colony,  and  it  was  urged 
against  her   restitution  that  the  trade  with  that 

'  The  Hector,  4  Rob.,  App. ;   The  Sally,  ib. 
•     ^  The  Lucy,  4  Rob.,  App. 

^  The  Miiy;nr(''h.a  Maydalcna,  2  Rob.,  138. 


270 


KEUTEALS. 


colony  was  not  generally  oj)en  in  time  of  peace 
to  neutral  ships,  but  was  only  permitted  hy  special 
licenses.  A  more  liberal  interpretation  of  the  in- 
structions incorporating  the  exception  was  adopted 
by  the  court,  and  the  vessel  was  released.^ 

In  another  case,  however,  of  very  great  importance, 
and  which  was  very  elaborately  contested,  the  court 
refused  to  admit  the  application  of  the  exception 
contained  in  the  instruction,  although  the  case  was 
manifestly  within  the  letter  of  the  instructions.  It 
was  the  case  of  a  contract  made  between  a  neutral 
merchant  of  Denmark  and  the  Dutch  East  India 
Company.  The  voyage  was  to  Copenhagen,  the 
port  of  the  neutral  merchant ;  but  the  evidence  in 
the  case  satisfied  the  court  that  the  object  of  the 
contract  was,  to  secure  Dutch  property  from  British 
hostility ;  and  farther,  that  a  commerce  conducted 
with  such  views,  and  facilitated  by  the  enemy  with 
extraordinary  privileges,  and  carried  on  upon  a  scale 
so  immense,  could  not  be  considered  a  neutral  traf- 
fic.^ 
Rule  prohibit-  It  is  an  established  rule,  and  a  very  important 
trfde^'by  neu^  *^^^i  that  the  colouial  trade  which  a  neutral  may 
jT'^^^T^^r®  not  carry  on  directly,  he  is  prohibited  from  conduct- 
trade  is  un-   ing  circuitously.     "  An  American,"  says  Lord  Stow- 

I  f\  rrr  fill  ^-^^ 

ell,  "  has  undoubtedly  a  right  to  import  the  prod- 
uce of  the  Spanish  colonies  for  his  own  use ;  afnd, 
after  it  is  imported,  hona  jide^  into  his  own  country, 
he  would  be  at  liberty  to  cirry  it  on  to  the  general 
commerce  of  Europe."^     But   the   question,  what 


lawful. 


'  The  Providentia,  2  Rob.,  248. 
'  The  Rendsherg,  4  Rob.,  121. 


'  The  Polbu  2  Rob.,  361 ;  1  Acton,  l7l  ;  video^^o  The  Maria, 
5  Rob.,  H65. 


TOJUTEALS.  271 

shall  be  considered  a  fair  importation  for  the  use 
of  the  neutral,  and  what  shall  be  regarded  as  a 
mere  colorable  importation  to  protect  the  enemy's 
property,  is  one  of  great  nicety,  and  difficult  of  de- 
termination. In  various  cases,  this  question  has 
.been  very  learnedly  discussed ;  but  in  none,  per- 
haps, more  so  than  upon  an  appeal  to  the  lords 
commissioners,  in  which  the  master  of  the  rolls 
gave  an  elaborate  judgment,  in  which  the  whole 
doctrine  is  illustrated  with  great  ability.^ 

In  an  official  correspondence  between  Lord 
Hawksbury  and  Mr.  King,  on  the  part  of  the 
United  States,  in  1801,^  the  proceedings  of  the 
British  court  of  admiralty  upon  this  question  was 
made  the  subject  of  complaint,  in  consequence  of 
which  the  advocate-general  of  England,  on  the  16th 
of  March  of  that  year,  made  an  official  report  as  to 
the  law  concerning  the  colonial  trade. 

He  says  :  "  The  general  principle  concerning  the 
colonial  trade  has,  in  the  course  of  the  present  war, 
been  relaxed  to  a  certp-in  degree,  in  consequence  of 
the  present  state  of  commerce.  It  is  now  distinctly 
understood,  and  has  repeatedly  been  so  decided  by 
the  high  Coui*t  of  Appeal,  that  the  produce  of  the 
colony  of  an  enemy  may  be  imported  by  a  neutral 
into  his  own  country,  and  may  be  re-exported 
thence,  even  to  the  mother  country  of  such  colony  ; 
and,  in  like  manner,  the  produce  and  manufacture 
of  the  mother  country  may,  in  this  circuitous  mode, 
legally  find  their  way  to  the  colony. 


s 


TheWillwm,  5  Rob.,  387. 

Vide  ako  1  Kent's  Com.,  90  ;  Mr.  Monroe's  Letter  to  Lord 
'Mulgrave  ;  and  Mr.  Madison's  Letter  to  Messrs.  Monroe  and  Pinck- 
noy. 


272  NEUTRALS. 

"  The  direct  trade,  however,  between  the  mother 
country  and  her  colonies,  has  not,  I  apprehend,  been 
recognized  as  legal,  either  by  his  majesty's  govern- 
ment, or  by  his  tribunals. 

"What  amounts  to  a  direct  trade,  and  what 
amounts  to  an  immediate  im23ortation  into  a  neutral, 
country,  may  sometimes  be  a  question  of  some  diffi- 
culty. A  general  definition  of  either,  applicable  to 
all  cases,  cannot  well  be  laid  down.  The  question 
must  depend  upon  the  particular  circumstances  of 
each  case.  Perhaps  the  mere  touchiing  in  the 
neutral  country,  to  take  fresh  clearances,  may  prop- 
erly be  regarded  as  a  fraudulent  evasion ;  and  is, 
in  effect,  a  direct  trade ;  but  the  high  Court  of  Ad- 
miralty h.as  expressly  decided  (and  I  see  no  reason 
to  expect  that  the  Court  of  Appeal  will  vary  the 
rules)  that  landing  the  goods,  and  paying  the 
duties  in  the  neutral  country,  breaks  the  continuity 
of  the  voyage,  and  is  such  an  importation  as  legal- 
izes tke  trade  ;  although  the  goods  be  reshipped  in 
the  same  vessel,  and  on  account  of  the  same  neutral 
proprietors,  and  forwarded  for  sale  to  the  mother 
country  or  the  colony."^ 
Penalty  for  j^  cases  of  illegal  colonial  trade  by  neutrals,  as 
niie.  well  as  in  other  cases  of  illegal  commerce  conducted 

by  them,  the  penalty,  in  case  of  capture,  is  confisca- 
tion. It  was  formerly  the  rule  in  such,  cases,  that 
the  neutral  ship  should  be  restored,  and  the  cargo 
only  confiscated ;  but  the  strict  rule  of  confiscation 
of  both  ship  and  cargo  is  now  well  established.^ 

'  Vide  Kent's  Com.,  92,  note. 

^  Jonge  Thomas,  in  a  note  to  the  report  of  The  Minerva,  2 
Rob.,  229  ;  The  Volant,  note  to  the  report  of  The  Wilhehnina,  4 
Rob.  App. ;  1  Acton's  R.,  iVl. 


NEUTRALS.  2  7  o 

■J 

There  are   some   otlier  commercial  transactions 
wMch  are  frequently  entered  into  by  neutrals,  of 
a  nature  so  subject  to  abuse,  tliat  belligerents  liave  . 
considered  themselves  justified  in  discountenancing 
them. 

Thus,  where  a  neutral  put  in  a  claim  upon  a  hos- 
tile ship  which  had  been  captured,  averring  that  it 
had  been  purchased  from  him,  and  not  paid  for,  and 
that  he  retained  a  lien  on  the  property  for  the  pay- 
ment of  the  purchase-money,  the  court  rejected  the 
claim,  saying  :  "  Such  an  interest  cannot  be  deemed 
sufficient  to  support  a  claim  of  property  in  a  court 
of  prize.  Captors  are  supposed  to  lay  their  hands 
on  the  gross  tangible  property,  on  which  there  may 
be  many  just  outstanding  claims  between  other 
parties,  which  can  have  no  operation  as  to  them."^ 

Silver  was  shipped  by  a  hostile  merchant,  to  his 
agent  in  Hamburg,  as  it  was  asserted,  for  the  pay- 
ment of  an  American  neutral.  The  claim  of  the 
neutral  was  disallowed  against  the  captors.'  "  For,"  * 

said  the  court,  "  even  if  the  asserted  intention  on 
the  enemy's  part  were  ever  so  sincere,  it  always  re- 
mained revocable.  The  hostile  merchant  retained 
the  power  of  converting  it  to  any  purpose  of  his 
own,  and  the  neutral  merchant  had  no  document 
whatever,  giving  him  any  control  over  it.  Under 
these  circumstances,  the  hostile  merchant  must  be 
taken  to  be  the  legal  proprietor,  and  as  his  proper- 
ty, this  silver  must  be  condemned." 

The  right  to  capture  enemy's  property  on  board  JJ^^^^^^^^^^Jj^Jg 
a  neutral  ship,  has  been  greatly  contested  by  na-  free  ships. 

'  The  Marianna,  6  Rob.,  24.      '  The  Josephine,  4  Rob.,  25. 

18 


274 


NEUTRALS. 


tions  whose  interests  were  opposed  to  tlie  afiii*m- 
ance  of  sucli  a  riglit.  In  1780,  the  emperor  of 
,  Russia  proclaimed  the  principles  of  what  was  called 
"  the  Baltic  code  of  neutrality,"  to  be  maintained 
The  ai-med  by  force  of  arms.  One  of  the  articles  of  this  code 
^'  was,  that  all  effects  belonging  to  the  subjects  of 
belligerent  powers  should  be  considered  free  on 
board  of  neutral  ships,  except  only  such  as  were 
contraband.  Sweden,  Denmark,  Prussia,  Germany, 
Holland,  France,  Spain,  Portugal,  Naples  and  the 
United  States  acceded  to  the  Russian  principle  of 
neutrality  ;  but  it  was  persistently  and  successfully 
opposed  by  Great  Britain,  and  was  abandoned  in 
1793.  In  1801  another  attempt  was  made  by  the 
Baltic  powers  to  procure  the  adoption  of  the  doc- 
trines of  armed  neutrality,  as  set  forth  in  1780  ;  but 
again  it  was  defeated  by  Great  Britain,  and  in  June, 
1801,  a  treaty  was  concluded  between  Great  Britain 
and  Russia,  in  which  it  was  agreed  that  enemy's 
property  was  not  to  be  protected  on  board  of  neutral 
ships.  The  whole  subject  is  discussed  with  much 
ability  by  Mr.  Wheaton  in  his  excellent  elementary 
treatise.^ 

The  conventional  law  upon  the  subject  has  under- 
gone continual  fluctuation,  according  to  the  varying 
interests  and  policy  of  maritime  nations.  In  mod- 
ern times,  however,  the  preponderance  of  treaty 
stipulations  is  in  favor  of  the  maxim,  free  ships, 
free  goods,  sometimes,  but  not  always,  connected 
with  the  con  Averse  maxim,  enemy  ships,  enemy  goods. 
Doctrine  of  the  During  the  war  of  1812  between  the  United 
upon  the  sub-  States  and  Great  Britain,  the  prize  courts  of  the 

'  Wheaton's  Elements  of  International  Law,  162,  183. 


BLOCKADE.  2*75 

former  nation  witli  great  uniformity  enforced  tlie  ject  of  free 
principle  of  international  law,  tliat  enemy's  goods  goo^l  ^^^ 
in  neutral  vessels  are  liable  to  capture  and  confisca- 
tion, except  as  to  such,  powers  with  whom  and  the 
United  States  government,  treaty  stipulations  exist- 
ed agreeing  to  a  different  rule. 

While  neutral  powers,  by  the  law  of  nations,  are  Blockade  and 
allowed  to  trade  with  the  belligerents,  in  innocent  ^^^  ^  ^*^°^ 
merchandise,  they  are  nevertheless  prohibited  from 
entering  or  attempting  to  enter  for  that  purpose 
ports  and  places  that  are  blockaded,  and  with  which 
by  vii'tue  of  the  blockade,  all  commerce  is  interdict- 
ed. It  is  therefore  of  the  highest  importance  to 
consider  what  is  the  character  and  true  definition 
of  blockade  as  established  by  the  law  of  nations. 

Blockade  has  been  defined  to  be,  the  caiTying 
into  effect  by  an  armed  force,  of  that  rule  of  war 
which  renders  commercial  intercourse,  vn.th  the  par- 
ticular port;  or  place  subjected  to  such  force,  unlaw- 
ful on  tbe  part  of  neutrals. 

There  is  no  belligerent  right  more  conclusively  The  beiiiger- 
established  in  tbe  law  of  nations,  and  certainly  blockade. 
none  more  necessary  or  important  in  its  applica- 
tion, than  the  right  of  blockade,  as  it  has  been  de- 
fined, determined  and  practically  executed  in  mod- 
ern times.  The  right  derives  its  origin  fi-om  the 
highest  and  purest  sources  of  maritime  jui'ispru- 
dence,  is  sanctioned  by  the  practice  of  the  most  en- 
lightened nations,  and  is  justly  regarded  as  one  of 
the  great  bulwarks  of  a  nation's  security  and  inde- 
pendence. 

However  clear  and  indisputable  may  be  the  right 
of  blockade,  and  however  just  and  necessary  may 


?7f1 


BLOCK^VDE. 


be  the  exercise  of  the  right,  it  must,  nevertheless, 

be  conceded  to  be  one  of  the  harshest  measures  in 

its  operation  of  any  known  in  the  code  of  interna- 

Recpiisites  to  tioual  law.     It  is  for  this  reason,  that,  by  the  uni- 

the  lawful  va-  '      •/ 

Hdity  of  block-  form  practice  of  the  tribunals  of  all  nations,  upon 
**^®'  whom  the  duty  devolves  of  giving  effect  to  its 

provisions,  certain  requisites  have  been  required  to 
be  established,  in  order  to  impart  to  the  exercise 
of  the  right,  its  full  force  and  validity.  These  re- 
quisites are  deemed  so  indispensable  to  the  legal 
existence  of  blockade,  that  the  failure  of  either  one 
of  them  has  been  uniformly  considered  to  operate 
as  an  entire  defeat  of  the  measure,  notwithstanding 
it  may  have  been  ordered  and  proclaimed  by  the 
supreme  power  of  a  nation. 

These  requisites  are  clearly  stated  by  Lord  Stow- 
ell  to  be — "  First,  the  existence  of  an  actual  block- 
ade ;  Second,  the  knowledge  of  the  party  against 
whom  proceedings  are  taken  for  its  violation  ;  and. 
Third,  some  act  of  violation,  either  by  going  in  or 
coming  out  with  a  cargo  laden  after  the  commence- 
ment of  the  blockade."^ 
Actual  block-  It  will  be  Convenient  to  consider  the  subject  of 
e  reqmsi  e.  j^JQ^^j^^^jg  with  reference  to  these  three  several  pre- 
requisites to  its  legality. 

And  first,  the  existence  of  an  actual  blockade.. 

The  declaration  of  a  blockade  is  an  act  of  sove- 
reignty which  can  emanate  only  from  the  supreme 
authority  of  a  nation. 

The  commander  of  a  national  vessel  or  the  com- 
modore of  a  squadron  cannot  order  it,  unless  under 
such  circumstances  as  to  impel   the  presumption 

'  The  Betsy,  1  Rob.,  29,  vide  also  The  Nancy,  1  Acton,  59. 


BLOCKADE.  27 1 

that  he  carries  with  him  such  a  portion  of  the 
sovereign  authority  as  may  be  essential  to  provide 
for  such  an  exigency.^  But  not  only  can  no  block- 
ade exist  as  a  legal  fact  which  has  not  been  declared 
by  competent  authority,  but  it  must  also  have  an 
actual  physical  existence.  "  The  veiy  notion  of  a 
complete  blockade,"  says  Lord  Stowell,  "  includes 
that  the  besieging  force  can  apply  its  power  to 
every  point  of  the  blockaded  state.  If  it  cannot, 
then  there  is  no  blockade  of  that  part  where  its 
power  cannot  be  brought  to  bear."^ 

By  this,  it  is  not  intended  that  the  blockading 
force  must  be  at  all  times  present,  if  the  absence 
be  temporary  and  accidental,  and  its  cause  known 
(as  by  being  blown  off  the  coast  by  tempestuous 
weather),  but  that  the  presence  of  the  sufficient 
force,  barring  such  accidents,  must  be  continuous, 
and  if  not  so,  by  reason  of  remissness  on  the  part 
of  the  cruisers  stationed  to  maintain  it,  it  is  con- 
sidered as  having  no  legal  existence.^  "  It  is  in 
vain,''  says  Lord  Stowell,  "  for  governments  to  im. 
pose  blockades  if  those  euij^loyed  on  that  service 
mil  not  enforce  them.  The  inconvenience  is  very 
great,  and  spreads  far  beyond  the  individual  case. 
Reports  are  eagerly  circulated  that  the  blockade  is 
raised,  foreigners  take  advantage  of  the  information, 
the  property  of  innocent  persons  is  ensnared,  and  the 
honor  of  our  country  is  involved  in  the  mistake."* 

'  TheHenrick  and  Maria,  1  Rob.,  146  ;   The  Rolla,  5  Rob.,  367. 

»  The  Mercurius,  1  Rob.,  80 ;  The  Stert,  4  Rob.,  66,  1  Acton, 
64. 

»  The  Frederick  Molke,  1  Rob.,  86-93,  94,  147,  156,  and  1 
Acton,  59. 

■•  The  Juffrow  Maria  Schroeder,  3  Rob.,  156,  and  note. 


2*78 


BLOCKADE. 


There  is  no  limit  to  tlie  riglit  of  a  belligerent  to 
blockade  tlie  ports  of  tlie  enemy,  but  that  which 
results  from  the  deficiency  of  naval  force.  If  a 
nation  possess  the  power  and  resources,  and  will 
incur  the  hazard  and  expense,  it  possesses  the  right 
to  blockade  the  entire  coast  of  the  enemy,  upon  the 
same  principle  which  confers  the  right  to  blockade 
a  single  port,  and  is  entitled  thereby  to  the  same 
exemption  from  neutral  interference.^  Such  a 
blockade  is  undoubtedly  rendered  more  practicable 
and  efficacious  in  modern  times  by  reason  of  the 
vast  improvements  in  the  construction,  and  naviga- 
tion by  steam,  of  ships  of  war. 
Knowledge  of  ]^ot  oulv  must  the  blockade  be  ordered  by  the 
requisite.  Sovereign  power  of  the  nation,  and  be  physically 
actual  and  complete,  but  to  be  legally  valid  and 
effectual,  so  as  to  subject  a  neutral  to  the  penalty 
consequent  upon  its  violation,  it  is  necessary  that 
he  should  be  sufficiently  informed  of  its  existence. 

There  are  two  modes  by  which  information  may 
be  communicated — either  by  formal  notification  by 
the  blockading  power,  or  by  the  notoriety  of  the 
fact  itself. 

All  that  is  requisite  to  the  sufficiency  of  a  notifi- 
cation, is  that  it  be  communicated  in  a  credible 
manner.  Any  such  communication,  whether  formal 
or  not,  being  such  as  to  leave  no  doubt  of  its  au- 
thenticity, is  obligatory  upon  the  neutral ;  but  the 
practice  of  nations  in  modern  times  has  been  to 
disseminate  such  intelligence  to  the  world  by  proc- 
lamation, so  distinctly  expressed,  as  to  leave  no 
room  for  the  defence  of  want  of  information.^     The 

'  Marshall  on  Ins.,  B.  I.;  c.  iii,,  §  3 ;   1  Acton,  63. 
»  The  Rolla,  6  Rob.,  367.  ' 


BLOCKADE.  279 

legal  effect  of  a  notice  officially  given  to  a  foreign 
government  is,  tliat  it  becomes  binding  upon  every 
individual  of  that  nation.  "  It  is  tlie  duty  of  gov- 
ernments," says  Lord  Stowell,  "  for  the  protection 
of  their  subjects,  to  communicate  the  information 
which  they  have  received,  and  no  individual  is 
allowed  to  plead  ignorance  of  it.  J.  shall  hold, 
therefore,  that  a  neutral  master  can  never  be  heard 
to  aver,  against  notification  to  his  government,  that 
he  was  ignorant  of  the  fact."^  It  has  been  even 
held,  that  a  formal  notification  to  one  nation,  after 
the  lapse  of  a  reasonable  time,  will  be  j)resumed  to 
have  been  received  by  the  subjects  of  a  neighboring 
nation,  operating  however,  upon  them,  not  from  the 
time  when  it  was  formally  given  to  the  one  nation, 
but  from  such  period  when  it  may  fairly  be  pre- 
sumed to  have  been  received  by  the  subjects  of  the 
other."^ 

It  is  well  established  that  when  notice  of  the 
blockade,  either  actual  or  constructive,  is  given,  the 
neutral  cannot  lawfully  go  to  the  station  of  the 
blockading  force,  under  the  pretence  of  obtaining 
information  of  its  continuance.  "The  merchant," 
says  Lord  Stowell,  "  is  not  to  send  his  vessel  to  the 
mouth  of  the  river,  and  say,  'If  you  don't  meet  a 
blockading  force,  enter ;  if  you  do,  ask  a  warning, 
and  proceed  elsewhere.'  Who  does  not  at  once 
perceive  the  frauds  to  which  such  a  rule  would  be 
introductory?  The  true  rule  is,  that,  after  the 
knowledge  of  an  existing  blockade,  you  are  not 

'  The  Neptunus,  2  Rob.,  110;  vide  also  The  Welvaart  Van 
Pillaiv,  2  Rob.,  128,  and  1  Acton,  61. 

"  The  Adelaide,  2  Rob.,  110,  and  note  ;  The  Jonge  Petronella, 
2  Rob.,  131  ;   The  Calypso,  2  Rob.,  298. 


280  BLOCKADE. 

to  go  to  the  very  station  of  blockade  upon  pre- 
tence of  inquiry."^ 

The  rule,  with  regard  to  notification  of  a  block- 
ade, is  somewhat  relaxed  on  behalf  of  nations  at  a 
great  distance  from  the  blockading  power ;  and  this 
relaxation  was  made  to  operate  favorably  to  adven- 
tures from  America,  during  the  war  at  the  close 
of  the  last  century,  between  France  and  Great 
Britain,  by  the  tribunals  of  the  latter  nation. 

It  is  not  to  be  presumed  that  such  a  relaxation 
of  the  rule  would  now  be  permitted,  since  maritime 
nations  have  been  brought  into  such  proximity  by 
ocean  steam  navigation. 

A  definite  rule  as  to  notification  of  a  l)lockade, 
is  established  by  the  treaty  of  1794,  betw^een  the 
United  States  and  Great  ^Britain,  in  the  following 
terms :  "  Whereas,  it  frequently  hapj^ens  that  ves- 
sels sail  for  a  port  or  place  belonging  to  an  enemy, 
without  knowing  that  the  same  is  either  besieged, 
blockaded  or  invested,  it  is  agreed  that  every  vessel 
so  circumstanced  may  be  turned  away  fi-om  such 
port  or  place ;  but  she  shall  not  be  detained,  nor  her 
cargo,  if  not  contraband,  be  confiscated,  unless  after 
notice  she  shall  again  attempt  to  enter;  but  she 
shall  be  permitted  to  go  to  any  other  port  or  place 
she  may  think  proper." 

The  receipt  of  notice  of  blockade  will  not  oper- 
ate to  prevent  a  neutral  from  retiring  \^dthout  mo- 
lestation fi'om  the  blockaded  port  where  she  was 
lying  at  the  time  of  such  notification.  And  she 
may  retii'e  with  a  cargo  on  board,  provided  the 

'  The  Spes  and  Irene,  5  Rob.,  76  ;  The  Betsy,  1  Rob.  332  ; 
The  Neptvnus,  2  Rob.,  114;  vide  also,  1  Acton,  141,  IGl. 


BLOCKADE.  281 

same  were  actually  laden,  and  liad  become  neutral 
property  at  the  time  of  tlie  receipt  of  sucli  notifica- 
tion. But  where  the  notification  of  blockade  gives 
to  neutral  vessels  lying  in  the  blockaded  ports  a 
certain  number  of  days  to  retire,  they  are  not  at 
liberty  to  purchase  cargo  to  be  laden  after  such  no- 
tification, even  though  they  may  retire  before  the 
expiration  of  the  time  limited  in  the  notification. 
And  a  cai^go  actually  delivered  on  board  a  neutral 
vessel,  under  such  circumstances,  after  the  notifica- 
tion, is,  in  law,  deemed  a  fresh  purchase.^ 

An  actual  notice  of  a  blockade  must  be  regular 
and  specific,  in  order  to  be  legaL 

A  blockade  was  ordered  by  Great  Britain  of  the 
single  port  of  Amsterdam,  but  a  British  commander 
notified  a  neutral  about  entering,  that  a  blockade 
existed  of  all  the  Dutch  ports.  It  was  held  to  be 
an  illegal  and  insufiacient  notice,  even  as  to  Amster- 
dam. "  Because,"  says  Lord  Stowell,  "  it  took  from 
the  neutral  all  power  of  election  as  to  what  other 
port  of  Holland  he  would  enter,  when  he  found  the 
port  of  his  destination  under  blockade.  A  com- 
mander of  a  ship  must  not  reduce  a  neutral  master 
to  this  kind  of  distress,  and  I  am  of  opinion  that  if 
the  neutral  had  contravened  the  notice,  he  would 
not  have  been  subject  to  condemnation."^ 

A  neutral  may  be  charged  with  sufficient  knowl- 
edo-e  of  a  blockade  to  be  binding  upon  his  conduct 
without  any  formal  notification,  by  the  mere  noto- 
riety of  the  fact.  Such  formal  notice  is  never  requi- 
site to  neutrals  lying  in  the  blockaded  ports.    "  The 

•  TheRolla,  6  Rob.,  364  ;   The  Betsy,  1  Rob.,  92,  and  152. 
'  2  The  Benrick  and  Maria,  1   Rob.,  146  ;   The  Rolla,  6  Rob., 
364. 


282 


BLOCKADE. 


continued  fact,"  says  Lord  Stowell,  "  is  a  sufficient 
notice.  It  is  impossible  for  those  within  to  be  ig- 
norant of  the  forcible  suspension  of  their  commerce, 
the  notoriety  of  the  thing  supersedes  the  necessity 
of  particular  notice  to  each  ship."^ 

An  important  distinction  has  been  recognized  and 
acted  upon  in  various  cases,  between  a  formal  notifi- 
cation, through  a  notice  to  his  government,  or  by 
notice  to  himself,  and  notification  presumed  from 
notoriety.  In  the  former  case,  no  plea  of  ignorance 
is  ever  permitted.  In  the  latter,  it  is  allowed  to 
prevail,  if  actually  established  by  the  proof — and 
there  is  also  this  additional  distinction  that,  in  the 
case  of  formal  notification,  the  mere  act  of  sailing'  to 
the  blockade,  with  a  contingent  design  to  enter,  if 
the  blockade  be  raised,  is,  of  itself,  a  consummation 
of  the  oftence  of  violation  of  the  blockade,  because, 
in  the  case  of  such  a  notification,  the  port  is  consid- 
ered closed,  until  a  formal  revocation  of  the  notifi- 
cation ;  but  no  such  presumption  arises  where  the 
notification  is  simply  of  the  fact,  by  notoriety,  and 
therefore,  in  such  case,  it  is  no  offence  for  a  neutral 
to  pursue  a  voyage  on  a  doubtful  or  provisional  des- 
tination.^ 

But,  in  order  to  charge  a  neutral  with  liabilities 
incident  to  a  blockade,  there  must  be  not  only  an 
actually  existing  legal  and  effectual  blockade,  nud 
formally  or  constructively  known,  but  there  must 
be  a  violation  of  the  blockade   so   existing   and 


'  The  Vroiv  Judith,  1  Rob.,  152. 

•  The  Cohwibia,  1  Rob.,  146, 156;   The  Mercurius,  1  Rob.,  83: 
The  Hurlije  Hane,  3  Rob.,  ')1A  ;    The  Neptunus,  2  Rob.,  110. 


BLOCKADE.  283 

known ;  and  this  leads  to  a  consideration  of  tlie  what  is  a  vio- 
tliird  brancli  of  tlie  subject,  namely,  what  is  a  vio-  blockade. 
lation  of  a  blockade. 

The  breach  of  a  blockade  may  be  either  by  going 
into  or  coming  out  of  the  blockaded  place  with  a 
cargo  laden  after  the  commencement  of  the  block- 
ade ;  but,  in  order  to  constitute  such  a  going  into 
the  blockaded  port  as  will  subject  a  neutral  to  the 
penalties  of  confiscation,  it  is  not  necessary  that  the 
entrance  be  completed.  If  the  vessel  is  placed  in 
the  vicinity,  in  a  situation  so  near  that  it  may  enter 
with  impunity  when  it  pleases ;  and  especially  if 
the  vessel  be  placed  so  as  to  be  under  the  protection 
of  shore  batteries,  it  is  Considered  a  breach  of  the 
blockade.  In  such  cases,  it  is  regarded  as  a  pre- 
sumption de  jure^  that  the  vessel  is  so  placed  with 
an  intention  to  violate  the  blockade ;  and  notwith- 
standing that  such  a  presumption  may  operate 
severely  in  individual  instances  of  innocence,  "  yet," 
says  Lord  Stowell,  '•  it  is  a  severity  necessarily  con- 
nected with  the  rules  of  evidence,  and  essential  to 
the  effectual  exercise  of  this  right  of  war."^  The 
blockade  may  be  violated  as  well  by  the  coming 
out  of  the  blockaded  place  as  by  going  in.  The 
cases  of  innocent  egress  are,  where  vessels,  lying  in 
the  blockaded  port  at  the  time  of  the  commence- 
ment of  the  blockade,  retire  upon  notification,  with- 
out taking  a  cargo  on  board,  unless  such  cargo 
were  laden  before  the  blockade  was  effective ;  and 
so  laden,  upon  purchase  before  made  in  good  faith. 
If  a  cargo  be  subsequently  laden,  the  act  is  consid- 

*   '  The  Neutralitet,  6  Rob.,  30 ;   The  Charlotte  Christine,  6  Rob., 
101;   The  Gute  Erwarimg,  6  Rob.,  182. 


284  BLOCKADE.. 

ered  fraudulent,  and  tlie  egress  of  tlie  vessel  a  vio- 
lation of  the  blockade.^ 

A  vessel  coming  out  of  a  blockaded  port,  is,  in 
all  cases,  liable  to  seizure,  and  tlie  onus  of  proving 
innocent  acts  and  intentions  lies  upon  the  claimant 
seeking  restitution.^ 

A  ship  transferred  from  one  neutral  to  another, 
in  a  blockaded  port,  and  retu'ing  in  ballast,  is  not 
guilty  of  a  breach  of  the  blockade.  And  if  a  neu- 
tral have  sent  in  goods,  previous  to  the  blockade, 
which  have  proved  unsalable,  he  may  withdraw 
them  for  the  owner  without  violating  the  blockade.^ 

K  a  neutral  purchase  a  ship  of  the  enemy  in  a 
blockaded  port,  that  alone  is  an  illegal  act ;  and 
she  may  be  caj^tured  at  any  time  on  her  voyage  to 
the  country  of  the  purchaser,  even  though  driven 
to  an  intermediate  port  by  stress  of  weather,  being 
considered  in  delicto  to  the  termination  of  the  voy- 
age."* 

What  excuses      There  are  cases  in  which  a  violation  of  a  block- 

a  violation  of.  iit,,iit  d  j_'         • 

blockade.  adc  IS  excusable  ;  but  the  burden  oi  exoneration  is 
always  upon  the  party  claimant  setting  up  the 
excuse ;  and  it  is  an  invariable  rule  that,  however 
innocent  may  have  been  the  intentions  of  the  party, 
his  conduct  must  be  explained,  not  only  in  such 
way  as  to  manifest  such  innocence,  but  he  must 
bring  it  within  the  principles  which  have  been 
established  for  the  protection  of  belligerent  rights, 

'  The  Vrow  Judith,  1   Rob.,  151;    The  Frederick   Molke,   1 
Rob.,  87. 

'  The  Welvaart  Von  Pillau,  2  Rob.,  130. 

3  The  Potsdam,  4  Rob.,  89 ;   The  Brie  Vrienden,  1  Dod.,  269. 

*  The  General  ILnniUon,  6  Rob.,  61. 


BLOCKADE.  285 

and  without  which,  no  blockade  can  "be  maintain- 

The  invention  of  neutrals  has  been  sufficiently 
fertile  in  providing  excuses  for  a  violation  of  block- 
ade ;  such  as  want  of  provisions,^  stress  of  weather,^ 
to  ascertain  the  land,"^  intoxication  of  the  master,^ 
the  misinforniation  of  foreign  ministers  f  but  such  ex- 
cuses are  rarely  allowed,  and  are  always  scrutinized 
by  courts  of  admiralty  with  the  greatest  suspicion. 

Positive  information  from  a  shif)  belonging  to  the 
blockading  nation,  that  a  particular  port  is  not 
blockaded,  though  the  information  were  erroneous, 
has  been  received  as  a  valid  excuse,  by  a  vessel  act- 
ing upon  such  information,^ 

If  a  place  be  blockaded  by  sea,  it  is  not  consid- 
ered a  violation  of  the  rights  of  the  belligerent, 
for  a  neutral  to  carry  on  commerce  with  it  by  in- 
land communications,^  though  such  trade  is  not  per- 
mitted by  the  citizens  of  the  blockading  power.® 

The  question  of  blockade  in  relation  to  rivers 
flowing  through  conterminous  states,  is  very  learn- 
edly and  elaborately  discussed  by  Lord  Stowell  in 
a  case  on  the  capture  of  vessels  in  the  Groningen 
Watt,  on  a  suggestion  that  they  were  bound  from 
Hamburg  to  Amsterdam,  then  under  blockade ;  the 
claim  being  given  under  the  authority  of  the  Prus- 
sian minister,  averring  that  the  place  in  question 
was  within  the  territories  of  the  king  of  Prussia 


10 


>  The  Arthur,  1  Edwards,  203  ;   The  Byfield,  ib.,  188. 
«  TheFortuna,  5  Rob.,  27 ;  '  The  Hurtige  Hane,  2  Rob.,  124. 
*  The  Adonis,  5  Rob.,  256.      ''  The  Shepherdess,  5  Rob.,  262. 
•«  The  Spesand  Irene,  5  Rob.,  79.    '  The  JVeptunus,  2  Rob.,  110. 
»  The  Ocean,  3  Rob.,  297.       '  The  Jonge  Pieter,  4  Rob.,  89. 
'"  The  Twee  Gehroeders,  3  Rob.,  336. 


286  BLOCKADE. 

Inland  countries  are  allowed  to  import  and  to 
export  tbrougli  the  ports  of  the  enemy,  subject, 
however,  to  strict  proof  of  property.^ 

Excuses  for  the  violation  of  blockade,  are  listened 
to  with  a  disposition  to  relax  the  severity  of  the 
law  in  favor  of  less  civilized  nations  (like  the  king- 
dom of  Morocco),  whom  it  is  considered  should 
not  be  held  bound  by  all  the  rules  of  the  law  of 
nations,  as  practised  in  more  enlightened  govern- 
ments,^ 

T^eutral  merchants  are  not  allowed  to  cover  ene- 
my's property  with  other  goods  belonging  to  them 
in  the  same  ship.  "  The  regular  penalty  of  such  a 
proceeding,"  says  Lord  Stowell,  "  is  confiscation ; 
for  it  is  a  rule  of  this  court,  which  I  shall  ever 
hold  till  I  am  better  instructed  by  the  superior 
court,  that  if  a  neutral  will  w^eave  a  web  of  fi^aud 
of  this  sort,  this  court  will  not  take  the  trouble  of 
picking  out  the  threads  for  him,  in  order  to  distin- 
guish the  sound  from  the  unsound.  If  he  is  detect- 
ed in  fraud,  he  will  be  involved  in  toto.  A  neutral 
surely  cannot  be  j^ermitted  to  say :  '  I  have  endeav- 
ored to  protect  the  whole,  but  this  part  is  really 
my  j^roperty ;  take  the  rest,  and  let  me  go  with  my 
own.'  If  he  will  engage  in  fraudulent  concerns 
with  other  persons,  they  must  all  stand  or  fall  to- 
gether."^ It  is  no  violation  of  a  blockade,  wliere  a 
neutral  owner,  without  knowledge  of  the  fact,  sends 
his  vessel  to  the  blockaded  port,  if  the  master,  bona 

'  The.  Magnus,  1  Rob.,  31  ;   The  Active  (Lords,  Mar.  10,  1798), 

'  The  Hurtige  Hane,  3  Rob.,  324, 

**  The  Uenrom,  2  Rob.,  9 ;  vide  also  The  Betsy  and  George,  2 
Gallison,  377  ;  The  St.  Nicholas,  1  Wheaton,  417;  and  The  F.  r- 
tuna,  3  Wheat.,  236, 


BLOCKADE.  287 

fide^  changes  his  course  for  another  port,  on  infor- 
mation before  capture.-^ 

A  neutral  violating  a  blockade,  is  considered  in 
delicto  until  the  voyage  is  terminated.  Until  that 
period,  the  vessel  may  be  caj^tured  and  proceeded 
agaiiist  in  like  manner  as  if  taken  while  in  the  act 
of  violation.  This  is  a  well-established  principle  laid 
down  by  the  elementary  writers,  and  has  been  fre- 
quently recognized  and  applied  by  admiralty  tri- 
bunals ;  but  if  it  so  hapjDen  that  the  blockade  be  in 
fact  raised  after  its  violation,  and  before  capture,  the 
offence  is  held  to  be  wiped  away.  To  use  the  lan- 
guage of  Lord  Stowell :  "  When  the  blockade  is  rais- 
ed, a  veil  is  thrown  over  every  thing  that  has  been 
done,  and  the  vessel  is  no  longer  taken  in  delicto? 

The  violation  of  a  blockade  subjects  the  proper-  Penalty  for 
ty  employed  to  confiscation.  This  is  the  well-estab-  blockade. 
blished  rule  in  the  law  of  nations.^  A  breach  of 
the  blockade  by  the  master  subjects  the  ship  to 
confiscation,  but  not  the  cargo,  unless  the  owner  of 
the  ship  be  also  the  owner  of  the  cargo ;  or,  unless 
the  owner  of  the  cargo,  from  cognizance  of  the  in- 
tended violation,  be  considered  in  pari  delictu  with 
the  ship-owner,  or  master,  or  supercargo.^ 

The  penalty  of  a  violation  of  a  blockade,  may 
attach  on  the  property  of  persons  ignorant  of  the 
fact,  by  the  conduct  of  the  master,  or  of  the  con- 
signee, if  intrusted  with  power  over  the  vessel.^ 

^  The  Imena,  3  Rob.,  169. 

*  IVie  Lisette,  6  Rob.,  395  ;  Bynkersboek,  Qu.  jur.  pub.,  Lib.,  I., 
c.  xi.,  p.  21-4;    The  Christiansberg,  6  Rob.,  376. 

.  *  The  Columbia,  1  Rob.,  154. 

*  The  Mrrcur'ms,  1  Rob.,  80  ;   The  Uenrom,  2  Rob.,  8. 
^  The  Columbia,  1  Rob.,  154. 


188  BLOCKADE. 

£Tlie  doctrine  laid  down  in  tlie  case  of  The  Chris- 
tian-sherg^  before  cited,  is  not  fully  expressed  in  the 
preceding  text. 

It  might,  perhaps,  be  inferred,  from  the  proposi- 
tion— that  a  neutral,  having  violated  a  blockade,  is 
considered  in  delicto  until  the  voyage  is  terminated 
— that  the  vessel  could  not  be  captured  and  pro- 
ceeded against  by  reason  of  the  offence,  at  any  sub- 
sequent period.  This,  however,  is  not  so,  unless  a 
veil  is  thrown  over  the  past  offence  by  the  raising 
of  the  blockade,  before  the  succeeding  voyage  of 
the  vessel. 

The  voyage  next  succeeding  that  upon  which  the 
offence  has  been  committed,  may  be  the  first  oppor- 
tunity afforded  for  the  vindication  of  the  law,  and 
the  case  of  The  Ohristiansherg^  therefore,  decides, 
that  the  liability  to  capture  is  not  limited  to  tlie 
termination  of  the  voyage  of  the  offence,  but  con- 
tinues through  that  which  next  succeeds  it. 

Two  cases,  confirmatory  of  this  doctrine,  are  cited 
by  the  reporter  in  a  note  to  the  case  of  The  Chris- 
tiansherg :  the  case  of  Parhnan  vs.  Allen,  1  Stairs' 
Decisions,  529 ;  and  the  case  of  the  Randers  Bye, 
decided  at  the  February  term  of  the  year  of  the 
report. 

In  the  latter  case,  the  authority  of  the  case  of 
The  Christian-sherg  \N3i^  invoked,  in  favor  of  a  decree 
of  condemnation — condemnation  was  refused — but 
the  doctrine  here  stated  was  affirmed,  by  the  refusal 
being  placed  solely  upon  the  ground  that  between 
the  voyage  upon  which  the  offence  had  been  com- 
mitted, and  that  upon  which  the  vessel  was  captured, 
a  short  but  distinct  voyage  had  taken  place. 

Upon  principle,  there  would  seem  to  be  no  just 


BLOCKADE.  289 

reason  for  holding  the  delictum  to  he  at  an  end,  hy 
the  mere  arrival  of  the  vessel  at  her  destined  port, 
upon  the  voyage  of  the  offence. 

The  true  ground  upon  which  the  offending  vessel 
is,  a't  any  time  during  the  existence  of  the  hlockade, 
absolved  from  liabilitv,  is,  that  the  rio;hts  of  third 
parties  may  have  intervened,  who  should  not  be 
exposed  to  loss  for  the  commission  of  an  offence  in 
which  they  did  not  participate,  and  of  which  they 
had  no  knowledge. 

But  when  a  vessel  arrives  at  her  destination,  fresh 
from  a  blockaded  port — having  succesr-fnlly  run  the 
gauntlet  of  the  naval  force,  stationed  for  the  pro- 
tection of  the  belligerent  right — the  achievement  is 
ordinarily  so  paraded  as  a  triumphant  and  meri- 
torious evasion  of  an  obnoxious,  if  hot  tyrannous 
right,  that  the  last  employment  of  the  vessel  be- 
comes matter  of  notoriety.  No  parties,  therefore, 
who  may  see  fit,  then  and  there,  to  entrust  their 
capital  in  the  succeeding  enterprise  of  the  vessel, 
can  be  regarded  in  the  light  of  innocent  parties 
in  that  sense  in  which  innocence  consists  of  igno- 
rance of  the  stain  of  guilt  resting  upon  her,  by 
reason  of  her  recent  and  last  employment. 

The  reason  for  the  rule  of  limitation,  in  this 
view,  would  rarely,  if  ever,  exist,  until  after  the  vessel 
had  made  a  distinct  voyage,  subsequent  to  that  of 
her  offence. 

There  have  been  several  occasions  for  the  applica- 
tion of  this  doctrine,  during  the  existinr^^  war  in  the 
'  United  States,  and  it  has  been  recognized  and  en- 
forced by  the  learned  judge  of  the  Ignited  States 
Court,  in  the  District  of  New  York,  although  no 
case  hn=5  occurred  in  which  condemnation  has  been 

19 


290  BLOCKADE. 

decreed,  solely  upon  the  ground  of  violation  of  tlie 
1  dockade  upon  the  voyage  preceding  tLat  of  the  cap- 
ture, because,  in  each  case,  other  and  distinct  grounds 
of  condemnation  have  also  existed.  The  affirmation 
of  the  doctrine  of  the  English  cases,  has,  however, 
been  so  clear,  as  to  leave  no  doubt  that  condemna- 
tion would  have  been  decreed  in  a  case  where  no 
other  cause  of  capture  was  averred. 

In  March,  1862,  the  schooner  EUzahetli,  then  at 
the  port  of  Charleston,  South  Carolina,  and  owned 
by  a  citizen  of  that  place,  took  on  board  a  cargo  of 
cotton,  and  successfully  running  the  blockade  of  the 
port,  arrived  at  the  convenient  neutral  British  port 
of  Nassau,  New  Providence.  At  this  port,  her  name 
was  changed  to  The  Mersey^  and  her  nationality 
was  ostensibly  changed  by  a  transfer  to  a  British 
subject ;  and  she  was  laden  with  a  cargo  consisting 
of  articles  of  great  scarcity  at  Charleston,  but  as 
common,  and  of  not  more  value,  than  coals  at  New- 
castle, in  the  port  of  Baltimore,  to  which  port  she 
was  documented  for  a  voyage.  Upon  this  voyage 
she  was  captured,  when  two  days  sail  from  Nassau, 
by  the  United  Stores  cruiser  Santiago  de  Cuha, 
and  sent  to  New  York  for  adjudication.  It  will  be 
seen  by  this  recital,  that  other  grounds  of  capture  ' 
were  involved  in  the  case ;  but  the  court,  in  assign- 
ing the  causes  upon  which  condemnation  was  de- 
creed, indicates  this  as  the  second  cause,  in  the 
words  following:: 

"  She  cam.e^out  of  Charleston,  by  evading  the 
blockade  of  that  port,  and  was  seized  on  her  first  ♦ 
voyage  subsequent  thereto."    {The  Christiansberg^ 
6  Rob.,  376,  382,  and  notes.     The  General  Hainil- 
ton,  6  Bob.,  62.) 


~   BLOCKADE. 


291 


By  tli^same  learned  judge,  this  was  made  a  dis- 
tinct ground  and  cause  of  condemnation  in  tke  case 
of  the  Major  Barhoiu\  captured  in  February,  1862, 
by  the  United  States  cruiser  De  Soto^  on  a  voyage 
succeeding  that  upon  which  she  successfully  violated 
the  blockade  of  the  port  of  New  Orleans. 

Also,  in  the  case  of  the  Joseph  H.  Toone^ 
captured  October  1st.,  18G1,  by  the  Uni;ted  States 
cruiser  South  Carolina^  while  (l)eing  document- 
ed for  a  voyage  to  Tampico),  she  was  steering  into 
Barataria  Bay,  a  Ijayou  connecting  with  the  Mis- 
sissippi River  below  New  Orleans;  and,  having 
on  the  preceding  voyage,  in  August,  successfully 
violated  the  blockade  of  the  port  of  New  Orleans, 
by  taking  a  cargo  out  of  that  port,  by  w^ay  of 
Berwick  Bay,  a  place  of  which  New  Orleans  is  the 
port  of  entry  and  clearance,  and  connected  with  that 
port  by  a  short  railroad. 


The  question  whether  a  neutral,  knowing  of  the 
establishment  of  a  belligerent  blockade,  may  law- 
fully sail  to  the  mouth  of  the  blockaded  port,  river, 
or  estuary,  with  the  bona  fi^e  intent  to  inquire 
there,  as  to  the  continued  existence  of  the  blockade, 
has  been  made  the  subject  of  frequent  and  earnest 
discussion  in  several  cases  of  prize,  recently  adju- 
dicated, in  the  District  of  New  York.  (  Vide  vol.  of 
MS.,  Decisions.  The  Cheshire,— The  Delta,— 
The  Empress?) 

In  the  cases  of  The  Cheshire  and  The  Delta, 
the  dishonesty  of  the  approach  to  the  blockaded 
port,  was  manifested,  among  other  criminating  cir- 
cumstances, by  the  false  destination  of  the  vessels, 
as  set  forth  in  their  papers. 


502  BLOCKADE. 

The  CJie-s-hire  was  captured  off  tlie  port*'of  Savan- 
nali,  Georgia.  She  was  documented  for  a  voyage 
from  Liverpool  to  Halifax,  or  Nassau,  not  as  ports 
of  contingent  destination,  in  the  event  of  the  block- 
ade being  found,  upon  inquir}^,  to  be  still  in  exist- 
ence, but  as  ports  of  absolute  destination,  the  design 
to  deliver  her  cargo  at  Savannah  in  any  event,  be- 
ing sedulously  concealed. 

The  Delta  was  captured  oif  the  port  of  Galves- 
ton, Texas.  She  was  documented  for  a  voyage  to 
the  Mexican  ports  of  Minatitlan,  or  Matamoras,  as 
ports  of  absolute  destination,  not  contingent  upon 
finding  Galveston  still  blockaded,  no  mention  being 
made  of  Galveston, 

In  these  cases,  therefore,  the  question  was  not  so 
directly  presented,  as  in  that  of  Thr^  Em.pre-'^-9, 
which  vessel  sailed  from  Rio  de  pJaneiro,  upon  a 
voyage  to  New  Orleans,  by  the  very  terms  of  her 
charter,  and  all  her  papers,  with  written  instruc- 
tions, "if  she  found  that  port  still  imder  blockade, 
to  turn  away  and  proceed  "^o  the  port  of  New 
York." 

It  will  be  seen  tlmt  here  was  no  direction  to  in- 
quire, and  not  attempt  an  entry  without  inquiry, 
but  to  go  to  New  Orleans,  and  there  deliver  her 
cargo,  unless  turned  away  by  a  blockading  force. 

This  furnished  grounds  of  suspicion  of  dishonesty 
of  design,  in  the  approach.  And  there  were,  in  the 
case,  in  the  opinion  of  the  court,  other  and  more 
pregnant  grounds  of  suspicion  of  criminal  inteut. 
But  the  ground  of  simulation  of  papers,  and  false 
destination,  regarded  by  Sir  William  Scott  as  so 
conclusive  of  dishonesty  of  purpose,  in  the  case  of 
Tlif  Carolina^  3  Rob.,  75,  was  wanting  here,  and 


BLOCKADE.  29S 

therefore  the  question  of  the  neutral  right  to 
approach  the  very  port  Mockaded,  for  the  honest 
purpose  of  inquiry,  was  more  nakedly  presented, 
and  was  earnestly  and  elaborately  argued. 

The  doctrine  laid  down  by  Sir  William  Scott,  in 
the  case  of  The  Betsy,  1  Eob.,  322,  and  The  Spe6' 
and  Irene,  5  Rob.,  76,  was  adhered  to  and  affirmed 
by  the  learned  judge  in  the  following  language : 

"  The  earlier  decisions  of  the  prize  courts  indi- 
cated, that  the  act  of  sailing  for  a  blockaded  port, 
with  knowledge  of  the  blockade,  was  itself  evidence 
of  an  attempt  to  evade  the  blockade  ;  but  the  state 
of  the  law  upon  that  point  now  is,  that  some  overt 
act  denoting  the  forbidden  attempt,  must  be  shown, 
in  addition  to  an  intention  to  commit  such  inft-ac- 
tion,  however  strongly  the  latter  may  have  been 
indicated  and  persisted  in.  (Phillips,  on  Ins.,  459, 
art.  832,  and  cases  cited  ;  Graves  vs.  U.  S.  Ins.  Co., 
1  Caines'  Ca.,  1 ;  Fitzsimmons  vs.  Newport  Ins.  Co., 
4  Cranch,  410;  1  Kent,  148.) 

"  The  rule  is  also  so  far  mitigated  in  its  applica- 
tion, that  going  purposely  to  a  blockaded  port, 
with  the  intention  properly  notified  on  the  ship's 
papers,  or  otherwise  fairl)-  disclosed,  to  enter  the 
port,  may  be  excused  in  a  neutral  ship,  if  the  ob- 
ject is  honestly  to  inquire  elsewhere,  whether  the 
blockade  is  still  in  continuance,  and  if  so,  to  avoid 
the  blockaded  port,  and  complete  the  voyage  at  a 
law^ful  one.  The  hazard  of  allowing  such  privilege, 
and  the  necessity  of  observing  the  utmost  ingenu- 
ousness in  its  indulgence,  is  emphatically  noted  in 
the  authorities  (Kent,  148,  149;  1  Duer,  on  Ins.,  669, 
^§§  42,  43) ;  and  accordingly,  the  courts  take  heed, 
in  administering  it,  that  neutrals  be  not  permitted, 


294  BLOCKADE. 

under  cover  of  that  relaxation  of  prize  law,  to 
smother  the  principle,  by  placing  themselves  out 
of  reach  of  its  restraints. 

"An  adherence  to  the  old  rule  would  therefore 
seem  to  be  still  exacted,  in  its  full  simplicity,  in 
one  of  its  cardinal  featui'es,  which  is,  that  the  neu- 
tral vessel  shall  make  her  inquiries  so  plainly  clear 
of  the  blockaded  port,  that  she  shall  not  acquire 
the  ability  (as  Chancellor  Kent  phrases  the  act) 
to  '  slip  herself  into  iV 

"  Phillimore  states  the  general  result  of  the  au- 
thorities to  be,  that  '  it  has  never,  under  any  circum- 
stances, been  held  legal  that  the  inquiry  shall  be 
made  at  the  very  mouth  of  the  river  or  estuary  of 
the  blockaded  port'  (3  Phillimore,  399,  §  304). 

"  Dr.  Lushington  says,  in  the  case  of  The  Union^ 
1  Spinkes,  P.  C,  164,  'the  claimants  allege  the  vessel 
was  chartered  for  Riga,  and  being  uncertain 
whether  the  place  was  blockaded  or  not,  they  sent 
her  to  Riga  to  inquire  of  the  blockading  force 
whether  Riga  was  blockaded.  Is  this  justifiable  ? 
Under  particular  circumstances,  perhaps,  it  may  be 
justifiable,  where  inforTnation  cannot  he  otherwise 
procured^  to  inquire  of  the  blockading  squadron ; 
but  the  excuse  can  never  prevail,  if  a  neutral  port 
be  accessible,  though  an  inquiry  there  might  be 
attended  with  great  loss  and  expense  to  the  neutral 
ship.' 

"  Without  further  extending  the  examination 
into  this  branch  of  the  defence,  it  is  clear  to  my 
mind,  that  the  claimants  cannot  lawfully,  under 
claim  of  making  inquiry  if  a  port  known  to  the 
vessel  to  have  been  under  blockade  when  her  voy- 
age was  set  on  foot,  and  after  she  had  been  prose- 


BLOCKADE.  295 

cuting  it  toward  the  port,  go  forward  to  the  en- 
trance of  the  port,  and  within  the  actual  line  of  the 
blockading  force,  to  inquire  as  to  the  existence  of 
the  blockade,  and  that  such  act,  by  the  law  ox  na- 
tions, subjects  her  to  condemnation  as  prize  of  war." 


In  deciding  the  question  of  the  construction  of 
the  Executive  proclamation,  in  the  case  of  The 
Admiral^  o-n  appeal  to  the  Circuit  Court  of  the 
United  States  for  the  Third  Circuit,  from  the  decree 
of  condemnation  of  the  District  Court  of  the  United 
States  for  the  Eastern  District  of  Pennsylvania,  the 
learned  Circuit  Judge  says : 

"The  Admiral,  with  fall  knowleds-e  that  her 
destined  port  is  blockaded,  takes  a  clearance  for 
St.  Johns,  and  is  found  a  thousand  miles  from  the 
proper  course  to  such  a  port,  and  in  the  act  of  en- 
tering the  blockaded  port,  and  when  tlius  arrested 
for  the  first  time,  inquires  if  such  Idockade  is  raised." 

"  A  vessel  which  has  fall  knowledge  of  the  exist- 
ence of  a  ])lockade,  before  she  enters  on  her  voyage, 
has  no  right  to  claim  a  warning  or  indorsement 
when  taken  in  the  act  of  attemj)ting  to  enter." 

"  It  would  be  an  absurd  construction  of  the  Pres- 
ident's proclamation,  to  require  a  notice  to  be  given 
to  those  who  already  had  knowledge.  A  notifica- 
tion is  for  those  only  who  have  sailed  witliout  a 
knowledge  of  the  blockade,  and  get  that  first  infor- 
mation from  the  blockading  vessels." 

The  purpose  of  a  belligerent  blockade  being  to 
interdict  all  commercial  intercourse  and  trade  with 
the  enemy,  such  blockade  is  deemed  violated  by 


296  BLOCKADE. 

auy  act  on  the  part  of  neutrals,  tLe  obvious  effect 
of  whicli  is,  to  defeat  that  purpose. 

It  has,  therefore,  been  hekl  in  the  cases  before 
cited,  and  may  be  considered  as  established  law, 
tliat  a  neutral  vessel  lying  in  a  blockaded  port,  un- 
♦  laden  or  laden,  at  the  time  of  the  institution  of  the 

blockade,  may  thus  depart,  without  infraction  of 
the  belligerent  right;  but  that  the  act  of  taking 
in  a  cargo,  after  the  blockade  is  est:iblished  and 
known,  is  of  itself  a  violation  of  the  blockade, 
subjecting  the  property  to  confiscation. 

This  doctrine  has  been  expressly  recognized  and 
applied  in  several  cases  adjudicated  during  the  ex- 
isting war  in  the  United  States.^ 

In  the  leading  case  of  The  Tropic  Wind,  decided 
in  the  Federal  court  for  the  District  of  Columbia, 
upon  this  point  the  learned  judge  says  : 

"All  the  testimony  concurs  in  showing  that  the 
cargo  was  laden  on  board  The  Tropic  Wind  on  the 
1.3th  and  14th  days  of  May,  1861.  No  principle  of 
prize  law  seems  better  settled  than  that  such  lading 
violates  the  blockade  and  forfeits  both  vessel  and 
cargo.  In  '  Weldman,  on  Search,  Capture,  and  Prize,' 
p.  42,  the  act  of  egress  is  declared  to  be  '  as  culpable 
as  the  act  of  ingress ;  and  a  blockade  is  just  as  much 
violated  by  a  ship  passing  outward  as  inward.  A 
blockade  is  intended  to  suspend  the  entire  com- 
merce of  the  place,  and  a  neutral  is  no  more  at 
liberty  to  assist  the  traffic  of  exportation  than  of 
importation.  The  utmost  that  can  be  allowed  to  a 
neutral  vessel  is,  that,  having  already  taken  in  a 
cargo  before  the  hlocJcade  begins,  slui  may  be  at  lib- 

'  Vide  The  Hiawathi,  The  Lijnchhnrg,  The  Cremhaw,  MS.  De- 
i  sions  IT.  S.  Dist.  Ct,,  New  York. 


BLOCKADE.  297 

erty  to  retire  witli  it.  If  she  atterward  takes  on 
board  a  cargo,  it  is  a  fraudulent  act,  and  a  violation 
of  the  blockade.  It  is  lawful  for  a  skip  to  with- 
draw from  a  blockaded  port  in  ballast,  or  with  a 
cargo  shipped  bond  fide  before  notice  of  the  block- 
ade.' (See  also  Vrouiv  Juditlt^  1  Robinson,  150; 
The  Jiino^  2  Rolnnson,  119  ;  Tlie  Nostra  Senliora^ 
5  Robinson,  52.)  In  '  Weldman's  International 
Law,'  volume  2d,  p.  205,  we  find  this  passage  : 
'  Where  the  blockade  is  known  at  the  port  of  ship- 
ment, the  master  becomes  an  ao-ent  for  the  caro-o : 
in  such  case,  the  owners  must,  at  all  events,  answer 
to  the  country  imposing  the  blockade,  for  the  acts 
of  persons  employed  by  them ;  otherwise,  by  sacri- 
ficing the  ship,  there  would  be  a  ready  escape  for 
the  cargo,  for  the  benefit  of  which  the  fund  was 
intended.' "  (See  also  The  James  Coo\  Edwards, 
261 ;  The  Arthur,  ik,  202  ;  The  Exchange,  ih.,  40 ; 
1st  Kent.,  2d  edition,  144,  146;  Olivera  \^.  Union 
Insurance  Company^  3d  AVheat.  Rep.,  194.  See  also 
Wheaton's  note  to  the  same  case.) 

The  principle  upon  this  point,  to  be  extracted 
from  the  authorities,  may  be  thus  briefly  stated : — 
A  belligerent  blockade  is  designed  to  interdict  ex- 
portation from,  as  well  as  importation  to,  the  block- 
aded port.  The  act  of  taking  on  board  a  cargo  in 
a  blockaded  port — even  though  not  followed  by  an 
overt  attempt  at  egress,  is  of  itself  a  violation  of  the 
belligerent  right,  subjecting  the  property  to  con- 
demn ation-»-because  it  is  an  act  of  direct  assistance 
of  the  traffic  of  exportation — the  presumption  of  in- 
tent to  violate  the  blockade — in  the  absence  of 
countervailing  evidence,  from  the  mere  fact  of  taking 
in  a  caro;o. 


{ 


OOg  BLOCKADE  OF  THE  SOUTHEKN  POETS. 

Distinction  be-  The  intelligent  reader  cannot  fail  to  perceive 
bTSde'as  a  that  the  blockade  ordered  by  the  proclamations 
belligerent  £  +|^  President  of  the  United  States,  of  the  19th 
nized  by  icrer- and  27th  of  Aj)ril,  1861  {vide  appendix),  of  the 
Ltd^that  pro-  2)01^:8  of  that  j^ortion  of  the  territory  of  the  United 
UnS  slJtes  States  whose  people  are  in  a  condition  of  insurrec- 
govcrnment  of  ^j^^^  affainst  the  2;overnment,  bears  no  resemblance, 

a  portion  of  its  =>  i  ,  ,       j_i        i  i       i       i       i 

own  ports,  and  in  purpose  or  character,  to  the  blockacl  e  known  to 
Sat  ^Snc-°  the  law  of  nations,  and  recognized  .  as  one  of  the 
*^°°-  rights  of  war,  which  sovereign  belligerent  nations 

may  exercise  against  each  other.  The  established 
rules  by  which  the  questions  are  determined,  of 
what  constitutes  a  violation  of  a  blockade,  and 
what  are  the  penalties  for  such  violation,  would  no 
doubt  be  alike  applicable — but  here  all  analogy 
ceases.  To  the  failure  to  perceive,  or  at  least  to 
acknowledge,  this  entire  want  of  analogy,  a  failui'e 
which  cannot  but  be  regarded  as  singularly  unac. 
countable  in  such  distinguished  publicists  as  the 
Earl  of  Ellenborough,  the  Earl  of  Derby,  and  Lord 
Brougham  {vide  Debates  in  the  British  House  of 
Lords,  of  May  16, 1861),  may  be  fairly  attributed 
the  unfortunate  position  assumed  by  the  British  gov- 
ernment toward  the  rebellion  existing  in  the  United 
States, 

The  blockade  known  and  recognized  as  such  by 
the  law  of  nations,  is  the  exercise  of  the  right  pos- 
sessed by  belligerent  nations  as  a  lawful  righit  of 
war,  to  close  the  ports  of  its  adversary  by  an  effic- 
ient force,  thereby  to  inflict  a  blow  upon  its  trade 
and  commerce,  and  so  to  cripple  its  means  and  re- 
sources, as  eventually  to  compel  a  pacification  by  a 
reparation  of  those  injuries  which  constituted  the 
causa  helli.      When  a  nation,  for  any  cause,  sees  fit 


BLOCKADE  OF  THE  SOUTHERN  POETS.  299 

to  order  tlie  closing  of  any  of  its  own  ports,  it  is 
jjerfectly  obvious  that  sucli  an  act  cannot  be  in- 
duced by  any  sucli  motive — tliat  it  is  not,  in  any 
manner  the  exercise  of  a  technical  belligerent  right, 
but  is  simply  the  exercise  of  that  power,  inherent  in 
every  nation,  to  regulate  and  control .  its  internal 
affairs  in  such  manner  as  it  may  deem  best  calcu- 
lated to  promote  its  interests,  its  safety,  its  exist- 
ence. 

The  learned  peers  of  England  assume  that  the 
blockade  ordered  by  the  government  of  the  United 
States,  is  the  exercise  of  a  strictly  technical  belliger- 
ent right,  and  therefore  that  that  government  ought 
not,  and  has  no  right  to  complain,  if  foreign  nations 
extend  towards  the  rebellious  people  whose  ports 
are  closed  by  the  blockade,  the  rights  of  lawful  bel- 
ligerents. These  consist  of  the  right  of  commission- 
ing private  vessels  of  war,  by  letters  of  marque,  to 
seize  and  condemn  as  la^vful  prize  of  war,  the  ves- 
sels of  the  blockading  power,  without  subjecting 
the  captors  to  the  penalties  of  piracy  denounced  by 
the  proclamation  of  the  United  States  government. 
And  also  the  light  of  such  letters  of  marque  to 
seek  and  claim  the  shelter  and  asylum  of  the  ports 
of  Great  Britain  as  a  neutral  nation,  with  such 
prizes  as  they  may  capture,  there  to  be  protected 
until  a  court  of  admiralty  of  their  own  jurisdiction 
may  pronounce  a  lawful  sentence  of  condemnation, 
for  it  is  now  a  settled  principle  of  international 
law,  that  where  no  special  treaty  provision  inter- 
venes (and  none  such  exists  between  the  United 
States  and  Great  Britain),  a  neutral  nation  has  no 
power  to  interfere  with  the  prizes  brought  into  its 
ports  by  the  vessels  of  either  of  the  lawful  belli- 


300  BLOCKADE    OF   THE   SOTJTHEEN    PORTS. 

gerent  parties — (vide  Kobinson's  Coll.  Mar.  p.  30, 
et  seq, ;  Loccenius  cle  Jur.  Mar.,  Lib.  II.,  c.  iv.,  §  7 ; 
De  Martens,  Li  v.  VIII.,  e.  vii.,  §  312  ;  Manning's 
Law  of  Nations,  p.  387,  et  seq.)  In  this  assumption 
of  the  learned  peers  lies  the  great  eiTor. 

The  preamble  to  the  proclamation  of  the  Presi- 
dent of  the  United  States,  of  April  19th,  1861  (to 
which  that  of  the  27th  of  the  same  month  is  mere- 
ly supj^lementary),  very  briefly,  but  with  perfect 
precision,  recites  the  causes  which  are  the  occasion 
of  the  measure.  They  are  two-fold.  First,  that  an 
insurrection  exists  in  that  portion  of  the  nation  in 
which  the  ports  are  ordered  to  be  closed,  which 
operates  to  prevent  the  execution  of  the  laws  of 
the  nation  for  the  collection  of  the  revenue,  passed 
pursuant  to  a  provision  of  the  Constitution  of  the 
United  States  requiring  a  uniformity  in  the  duties 
imposed  upon  importations ;  and,  second,  that  the 
persons  engaged  in  the  insurrection,  by  a  most  un- 
waiTantable  assumption  of  the  rights  of  lawful 
belligerents,  threaten  to  issue  letters  of  marque, 
authorizing  those  to  whom  they  are  granted  to 
assault  the  persons,  and  seize  and  confiscate  the 
vessels  and  property  of  citizens  of  the  United  States 
engaged  in  commerce  upon  the  seas. 

It  is  therefore  solely  for  the  pui'pose  of  securing 
the  uniform  enforcement  of  its  own  revenue  laws, 
enacted  pursuant  to  the  provisions  of  its  own  con- 
stitution, and  to  prevent,  as  far  as  possible,  one 
portion  of  its  people  from  committing  piratical 
depredations  upon  the  lives  and  property  of  the 
others,  that  this  most  salutary  order  is  proclaimed, 
as  a  measui'e  of  domestic  peace,  and  of  national 
security. 


BLOCKADE    OF    THE    SOUTHERIS^    PORTS.  301 

No  one,  surely,  whose  intelligence  is  not  clouded 
by  prejudice,  or  obscured  by  selfisli  considerations, 
can  fail  to  perceive  tlie  broad  distinction  between 
that  blockade  which  is  proclaimed  by  a  sovereign, 
nation,  of  a  portion  of  its  own  ports,  for  the  pur- 
pose of  quelling  a  domestic  insurrection,  and  com- 
pelling tlie  misguided  insurgents,  to  "  unthread  the 
rude  eve  of  rebellion,  and  welcome  home  ag-ain  dis- 
carded  peace,"  and  that  which  is  ordered  and  enforced 
by  a  sovereign  government  of  the  ports  of  its  for- 
eign enemy,  for  the  purpose  of  paralyzing  his  pow- 
er, and  compelling  him  to  repair  his  wrongs,  and 
submit  to  the  terms  of  equitable  pacification.  The 
latter  is  the  technical  belligerent  right,  the  right  of 
war,  the  right  of  a  sovereign  government,  recognized 
by  the  law  of  nations,  to  inflict  a  blow  upon  the  com- 
merce of  the  adversary,  although  it  be  with  the  in- 
cidental abridgment  of  the  accustomed  commerce 
of  neutral  nations. 

The  former,  while  it  is  also  a  belligerent  right 
resulting  from  a  state  of  war,  is  the  right  which 
every  nation  possesses  by  the  law  of  nature,  which 
is  above  and  beyond  all  mere  international  prescrip- 
tions, the  great  law  of  self-preservation,  to  take  all 
such  measures,  and  adopt  all  such  internal  regula- 
tions as  may  be  requisite  to  maintain  its  own  unity, 
its  own  nationality,  its  own  supremacy  (upoD  which 
alone  rest  the  safety,  prosperity  and  hai)piness  of 
the  citizen),  against  the  unlawful  combinations  of 
its  own  subjects,  leagued  together  in  the  traitorous 
design  to  overthrow  and  destroy  it. 

The  distinction  is  so  broad,  and  so  patent  to  the 
•common  understanding,  that  any  thing  beyond  its 
mere  statement  would  seem  hardly  justifiable  in  an 


302  BLOCKADE  OF  THE  SOUTHEEN  POKTS. 

elementary  treatise,  but  for  the  extraordinary  as- 
sumption of  the  noble  lords  in  the  British  Parlia- 
ment, and  the  unfortunate  position  assumed  by  the 
British  government  toward  the  United  States  re- 
sulting from  that  assumption. 

It  is  greatly  to  be  hoped  that  a  more  mature  con- 
sideration, and,  above  all,  the  irresistible  logic  of 
events,  may  produce  a  conviction  of  the  error  into 
which  the  government  of  Great  Britain  has  unhap- 
pily fallen,  and  effect  a  change  in  her  avowed  pol- 
icy, not  so  much  for  the  influence  of  such  a  change 
upon  the  conflict  to  which  it  is  directed,  as  for  the 
reasonable  apprehension  that  such  a  precedent  in 
the  law  of  nations,  may,  in  after  times,  be  a  fi'uitful 
source  of  public  calamity  to  the  nation  by  which 
it  was  adopted/ 

'  Scarcely  had  the  foregoing  passed  through  the  press,  when  in- 
formation was  received  indicating  a  decided  change  in  the  policy 
of  Great  Britain,  by  an  alleged  ministerial  construction  of  the 
Queen's  pi-oclamation  of  neutrality,  which  would  seem  to  strip  it 
of  all  significance. 

It  is  said  that,  notwithstanding  the  proclamation  of  neutrality, 
the  ships  of  war  and  privateers  commissioned  by  the  several  bel- 
ligerents will  not  be  permitted  to  carry  their  prizes  into  British 
ports.  Should  this  intelligence  prove  to  be  correct,  although  it 
be  not  possible  to  regaixl  it  as  other  than  an  acknowledgment 
that  the  proclamation  of  neutmlitf/  Avas  premature,  and  should  not 
have  been  made  at  all,  yet  such  a  salutary  change  of  policy  Avould 
be  so  gratifying  in  itself,  as  effectually  to  disarm  criticism  irpon 
the  method  adopted  to  effect  it. 

The  rights  of  lawful  bellio-erents  to  claim  the  shelter  and  asylum 
of  neutral  ports  with  their  prizes,  there  to  await  a  sentence  of 
condemnation  by  a  competent  tribunal  of  the  country  of  the  cap- 
tors, is  an  established  right,  "  settled,"  as  Lord  Stowell  says,  "  by 
the  inveterate  practice  of  Great  Britain."  This  right  was  the 
only  substantial  effect  of  the  proclamation  of  neutrality,  which 
IS,  beyond  dispute,  a  virtual  recognition  of  the  confederate  insur- 


BLOCKADE    OF    THE    SOUTHEEIST   POETS.  303 

In  connection  witli  tliis  subject  a  question  has 
arisen  as  to  the   power  of  the  President  of  the 
United  States,  under  the  Constitution,  to  institute 
the  blockade  of  the  ports  of  the  states  which  are  ^ 
in  rebellion  against  the  national  government. 

The  power  to  declare  war,  to  grant  letters  of 
marque  and  reprisal,  and  to  make  rules  concerning 
captures  on  land  and  water,  is  vested  solely  in  the 
Congress  of  the  nation,  by  the  pro\dsions  of  the  8th 
section  of  the  1st  article  of  the  Constitution. 

That  power,  therefore,  cannot  be  exercised  by  the 
President.  But  the  institution  of  a  blockade  is  not 
of  itself  a  declaration  of  war.     It  is  the  exercise  of 

rectionists  as  lawful  belligerents.  Tlie  exercise  of  such  a  right 
would  undoubtedly  enable  the  insurrectionists  to  inflict  a  blow  of 
terrible  severity  upon  the  mercantile  marine  of  the  nation.  Shorn 
of  this  right,  the  letters  of  marque  issued  by  the  rebels  become 
dead-letters ;  for,  their  own  ports  being  effectually  blockaded,  and 
the  treaty  stipulations  existing  between  the  United  States  and  the 
governments  of  France  and  Spain,  of  Mexico,  Central  America, 
and  the  South  American  republics,  precluding  the  use  of  the  ports 
of  these  nations  as  asylums  for  prizes,  a  death-blow  is  inflicted 
upon  the  piratical  expeditions  of  the  insurgents,  denominated 
privateering. 

Such  expeditions  are  inspired  only  by  the  hope  of  gain,  and 
will  not  be  undertaken,  when,  in  addition  to  the  ordinary  hazard 
of  the  enterprise,  no  visible  means  exist  of  converting  the  cap- 
tured property  as  lawful  prize,  after  captures  shall  have  been  made. 

In  the  rapidly  shifting  current  of  events,  the  test  of  the  sincer- 
ity of  Great  Britain  in  this  complete  but  satisfactory  receding 
from  her  policy  as  first  proclaimed,  may  be  imposed  upon  her 
even  before  the  publication  of  this  work. 

It  requires  but  little  political  foresight  to  enable  one  to  predict 

with  confidence  that  the  existence  of  amicable  relations  between 

the  great  nations  of  the  woild  is  suspended  upon  the  manifesta- 

•tions  of  sincerity  in  this  behalf,  which  shall  be  exhibited  by  that 

government. 


304  BLOCKADE  OF  THE  SOUTHERN  POETS. 

one  of  tlie  riglits  incident  to  a  condition  of  war, 
clearly  defined  and  establislied  in  the  law  of 
nations. 

The  institution  of  a  blockade  of  the  ports  of  a 
foreign  nation,  by  the  direction  of  the  President, 
prior  to  any  legislative  declaration  of  war,  or  to 
the  actual  existence  of  hostilities,  might  properly 
be  reo^arded  as  tantamount  to  a  declaration  of  war, 
and  therefore  an  unlawful  assumption  of  the  func- 
tions of  the  legislature.  But  war  may  exist  without 
any  congressional  declaration.  Such  indeed  was 
the  case  with  the  war  between  the  United  States 
and  Mexico.  There  was  no  legislative  declaration 
of  that  war,  but  by  an  act  of  Congress,  the  actual 
existence  of  the  war  by  virtue  of  Mexican  hostilities 
against  the  United  States,  was  set  forth  and  pro- 
mulgated. It  was  therefore  decided  by  the  Supreme 
Court  of  the  United  States,  in  questions  growing 
out  of  the  acts  of  the  President  durins;  that  war, 
that  the  actual  existence  of  the  war  authorized  the 
executive,  by  virtue  of  his  position  as  commander- 
in-chief  of  the  army  and  the  navy,  and  without  any 
legislative  enactment  or  declaration  whatever,  to 
exercise  all  the  belligerent  rights  recognized  by 
the  law  of  nations  : — "  to  direct  the  movements  of 
the  naval  and  military  forces,"  and  "  to  employ 
them  in  such  manner  as  he  may  deem  most  eflfect- 
ual,  to  harass  and  conquer  and  subdue  the  enemy. "^ 

The  institution  of  a  blockade  is  a  right  much 
more  exactly  defined  and  recognized  in  the  law 
of  nations  than  those  exercised  by  the  President, 

'  Fleming  et  al.  vs.  Page^  9  How.,  615  ;  Cross  et  al.  vs.  Har- 
rison, 16  How.,  189. 


BLOCKADE  OF  THE  SOUTHERN  PORTS.  305 

and  wliicli  were  in  question  in  the  cases  referred 
to. 

It  would  seem  therefore  that  the  constitutional 
power  of  the  President  to  institute  the  blockade 
of  the  southern  ports  (as  by  hi^  proclamations  of 
the  19th  and  27th  of  April,  1861)  is  not  only  clear 
as  resultinof  from  his  office  of  commander-in-chief  of 
the  naval  forces,  but  it  is  established  and  has  be- 
come res  adjudicata  by  the  decision  of  that  tribunal 
whose  province  it  is  to  interpret  the  constitution, 
provided  it  be  conceded  that  war  actually  existed 
at  the  time  of  the  institution  of  the  blockade. 

Of  course  it  is  matter  of  notoriety  that  hostilities 
of  the  most  determined  and  most  aggravated  char- 
acter were  then  actually  being  carried  on  by  the 
insurrectionists  as^ainst  the  United  States.  These 
acts  of  hostility  and  rebellion  are  recited  in  the 
proclamation  of  the  President,  and  no  one  can 
doubt  that  they  had  reached  that  point  which 
fully  justified  the  declaration  that  civil  war  then 
existed.  The  proclamation  of  blockade,  in  its  re- 
cital of  the  acts  of  hostility  committed  and  threat- 
ened, must  be  considered  as  equivalent  to  a  decla- 
ration of  the  existence  of  civil  war. 

The  question  then  returns; — the  institution  of 
blockade,  being  the  exercise  of  a  right  resulting 
from  a  condition  of  war  which  the  President  of  the 
United  States  may  constitutionally  direct  as  com- 
mander-in-chief of  the  naval  forces,  without  any 
legislative  act — when  war  actually  exists — is  it 
competent  for  the  President  to  determine  that  war 
does  exist,  and  act  accordingly  ? 
•  This  question  also  seems  to  have  been  definitively 
settled  by  the  Supreme  Court  of  the  United  States, 

20 


n06  BLOCKADE  OF  THE  SOUTHEEN"  POETS. 

ostablisliiug  the  power  of  the  President  to  declare 
the  actual  existence  of  a  civil  war,  as  well  between 
a  foreio-n  nation  and  its  revolting  citizens  or  sub- 
jects, as  with  reference  to  a  domestic  insurrection. 
In  the  cases  already  referred  to,^  it  was  decided 
that  it  was  the  province  of  the  executive  to  deter- 
mine as  a  political  question,  whetlier  civil  war  actu- 
ally existed  between  Spain  and  lier  colonies,  and  the 
executive  having  tlius  declared,  it  was  the  duty  of 
the  judiciary  to  extend  to  both  parties  all  the  rights 
of  lawful  belligerents. 

By  the  Stli  section  (15tli  clause)  of  the  1st  arti- 
cle of  the  Constitution,  the  Congress  of  the  United 
States  is  clothed  with  the  power  "  to  provide  for 
calling  forth,  tlie  militia  to  execute  the  laws  of  the 
Union,  suppress  insurrections  and  repel  invasions." 
Pursuant  to  this  power  the  Congress  has  provided 
for  calling  fortb  the  militia,  by  a  special  act,  whicli 
vests  in  the  President  of  the  United  States  an  abso- 
lute discretion  over  the  subject  matter.^ 

The  Supreme  Court  hias  decided  that  this  legisla- 
tive enactment,  cloth.es  the  executive  w^ith  the  ex- 
clusive authority  of  deciding  whether  the  emer- 
gency has  arisen  contemplated  by  the  constutional 
provision,  in  other  words  to  determine  whether 
there  is  an  invasion  by  a  foreign  power,  which  is 
a  public  war,  or  a  domestic  insurrection,  which 
may  be  a  civil  war,  to  requii'e  or  justify  the  calling 
forth  the  militia  in  defence  of  the  national  in- 
tegrity.^ 

*  The  Santissima  Trinidad,  7  Wheaton,  805. 
'  Act  of  1795 ;  ch.  xxxvi.,  §§  1,  2. 

'  Martin  vs.  Mott,  12  Wheat.,  29  ;  vide  also,  Story's  Com.  on 
the  Const.,  §§  1209,  1211. 


BLOCKADE  OF  THE  SOUTHERN  PORTS.  307 

This  would  seem  to  cover  the  entire  ground. 

The  facts  recited  in  the  executive  proclamation, 
by  which  the  blockade  is  ordered,  and  75,000  mi- 
litia are  called  into  service,  are  equivalent  to  a 
declaration  of  the  existence  of  a  civil  war,  wao-ed 
for  the  avowed  purpose  of  effecting  the  destruction 
of  the  government — not  a  mere  insurrection  incited 
to  resist  the  execution  of  an  obnoxious  law. 

This  is  a  political  question  which  it  is  the  prov- 
ince of  the  executive  to  determine. 

Having  thus  deteiTnined  that  a  civil  war  exists, 
as  commander-in-chief  of  the  army  and  the  navy, 
the  President  becomes  forthwith  vested  with  the 
power  of  exercising  all  the  rights  resulting  from  a 
condition  of  war,  known  to  the  law  of  nations, 
prominent  among  which  is  that  of  blockading  the 
ports  of  the  enemy. 

The  difficulty  which  at  first  seems  to  embarrass 
the  solution  of  this  question  arises  out  of  the  ap- 
parent inconsistency  between  the  position  which 
the  parent  government  necessarily  assumes  in  the 
institution  of  a  blockade  of  the  ports  of  its  rebel- 
lious subjects,  which  is  the  position  of  a  belligerent 
power  exercising  a  right  incident  only  to  a  condi- 
tion of  war,  whether  it  be  a  public  or  a  civil  war ; 
and  its  position,  by  which  it  denies  to  the  people 
in  rebellion  one  of  the  principal  belligerent  rights, 
namely,  that  of  annoying  the  enemy's  commerce 
without  being  subjected  to  the  penalties  of  the 
municipal  law  of  piracy. 

But  in  truth  there  is  no  such  inconsistency.  A 
sovereign  nation,  engaged  in  the  duty  of  suppress- 
ing an  insurrection  of  its  citizens,  may,  with  entire 
consistency,  act  in  the  twofold  capacity  of  sover- 


308  BLOCKADE  OF  THE  SOUTHERN  POETS. 

eign  and  belligerent,  according  to  the  Fevcril  meas- 
ures resorted  to  for  the  accomplishment  of  its  pur- 
pose. By  inflicting,  through  its  agent  the  judiciary, 
the  penalty  which  the  law  affixes  to  the  capital 
crimes  of  treason  and  piracy,  upon  those  who  shall 
be  found  guilty  of  levying  war  against  the  nation, 
or  of  committing  depredations  upon  its  commerce, 
it  acts  in  its  capacity  as  a  sovereign,  and  its  courts 
are  but  enforcing  its  municipal  regulations.  By  in- 
stituting a  blockade  of  the  ports  of  its  rebellious 
subjects,  and  thereby  interdicting  their  commercial 
intercourse  with  the  world,  and  enforcing  this  meas- 
ui'e  by  capturing  its  vessels  and  cargoes  whereso- 
ever found,  and  by  capturing  the  vessels  of  all  na- 
tions that  shall  violate  or  attempt  to  ^dolate  the 
blockade  imj)Osed,  or  shall  supply  or  attempt  to 
supply  them  mth  any  means  whatever  to  enable 
them  to  continue  their  rebellion,  the  nation  is  ex- 
ercising the  right  of  a  belligerent,  and  its  courts, 
in  their  adjudications  upon  the  captures  made  in 
the  enforcement  of  this  measure,  are  organized  as 
courts  of  prize,  governed  by  and  administering  the 
law  of  nations.  This  position  is  very  clearly  stated 
by  Chief  Justice  Marshall.  He  says:  ^'A  sover- 
eign who  is  endeavoring  to  reduce  his  revolted  sub- 
jects to  obedience,  possesses  both  sovereign  and 
belligerent  rights,  and  is  capable  of  acting  in  either 
character.  If,  as  a  legislator,  he  publishes  a  law 
ordaining  punishments  for  certain  offences,  which 
law  is  to  be  applied  by  courts,  the  nature  of  the  law 
and  the  proceedings  under  it  will  decide  whether 
it  is  an  exercise  of  belligerent  rights,  or  exclusive- 
ly of  his  sovereign  power ;  and  whether  the  court, 
in  applying  the  law  to  particular  cases,  acts  as  a 


BLOCKADE  OF  THE  SOUTHERN  POETS.  309 

prize  court  or  as  a  court  enforcing  municipal  regu- 
lations." ^ 


JUDICIAL   CONSTRUCTION   OF   THE   EX- 
ECUTIVE PEOCLAMATION. 

Under  the  early  adjudications  made  in  the  Fed- 
eral courts  of  New  York  and  Massachusetts,  during 
the  existing  war  in  the  United  States,  upon  cap- 
tures made  for  violation  of  the  blockade  of  the 
southern  ports,  an  interesting  and  important  ques- 
tion arose,  as  to  the  construction  of  the  Executive 
proclamation,  by  virtue  of  which  the  blockade  in 
question  was  set  on  foot. 

It  was  contended,  with  great  earnestness  and 
ability,  by  many  distinguished  counsel,  represent- 
ing the  interests  of  claimants  of  captured  property, 
that,  by  the  terms  of  the  proclamation  of  the  IQtli 
of  April,  1861,  a  neutral  vessel,  having  knowledge 
of  the  blockade,  was  not  liable  to  capture  for  an 
attempted  violation,  unless  that  attempt  were  made 
after  the  vessel  had  been  once  warned  of  the  ex- 
istence of  the  blockade  l^y  one  of  the  blockading 
vessels  stationed  off  the  port,  and  such  warning 
had  been  indorsed  upon  her  register. 

The  language  of  the  proclamation,  relied  upon  to 
sustain  this  position,  is  as  follows  : 

"  If,  therefore,  with  a  view  to  violate  such  block- 
ade, a  vessel  shall  approach,  or  shall  attempt  to 
leave  any  of  the  said  ports,  she  will  be  duly  warned 
by  one  of  the  blockading  vessels,  who  will  indorse 
on  her  register  the  fact  and  date  of  such  warning ; 

'  Rose  vs.  Himeleif,  4  Cranch,  272. 


310  BLOCKADE  OF  THE  SOUTHEEI^  POETS. 

and  if  the  same  vessel  sLall  again  attempt  to  enter 
or  leave  the  blockaded  port,  she  will  be  captured. 
and  sent  to  the  nearest  convenient  port,  for  such 
proceedings  against  her  and  her  cargo,  as  prize,  as 
may  be  deemed  advisable." 

It  is  obvious,  that  upon  the  peculiar  phraseology 
here  adopted,  an  argument  of  much  plausibility 
and  force  may  be  presented,  in  support  of  the  posi- 
tion taken. 

In  the  determination  of  the  question  whether  such 
construction  can  be  maintained,  it  is  proper,  first 
of  all,  to  consider  its  effect,  as  accomplishing  or 
defeating  the  purpose  of  interdicting  commerce 
with  the  ports  of  the  insurgent  states,  for  which 
the  blockade  was  established. 

And  here,  it  is  quite  apparent,  that  if  neutral 
vessels,  with  full  knowledge  of  the  blockade,  may, 
without  incurring  the  hazard  of  capture,  enter  and 
depart  from  any  of  the  blockaded  ports,  as  often  as 
they  can  succeed  in  ev^ading  a  warning  by  the  com- 
mander of  a  blockading  vessel,  and  an  indorsement  of 
the  warning  upon  her  register,  such  immunity  would 
operate  an  utter  defeat  of  the  purpose  of  the  interdict. 

It  would  be,  in  effect,  a  universal  license  to  all 
neutral  traders,  whatever  their  knowledge  of  the 
inhibition,  so  long  as  they  could  succeed  in  avoid- 
ing the  fatal  warning  and  its  indorsement,  to  do 
precisely  that  which  it  is  the  expressed  purpose  of 
the  proclamation  to  prohil^it,  namely,  to  enter  and 
depart  from  the  interdicted  ports,  accomplishing 
the  purposes  v)f  commerce,  and  supplying  the  ene- 
my with  the  means  of  continuing  and  prolonging 
his  revolt,  without  being  subjected  to  any  penalty 
tlifTofor. 


BLOCKADE   OF   THE   SOUTHERlsr   PORTS.  311 

It  would  be  as  if  tlie  Executive  liad  tlius  pro- 
claimed : 

"  I  intend  to  set  on  foot  a  blockade  of  the  south- 
ern ports,  which  blockade  shall  interdict  all  ap- 
proach of  neutral  vessels,  after  its  establishment, 
and  they  have  knowledge  of  it,  because,  if  allowed 
to  approach,  under  any  pretence,  they  will  be  sure 
to  avail  of  that  pretence  to  secure  an  entrance,  with 
immunity  from  capture  if  unsuccessful.  Nevertlie- 
less,  each  neutral  vessel  of  the  world  may  once  ap- 
proach each  one  of  these  twenty  or  thirty  blockaded 
ports,  with  full  knowledge  of  the  blockade — nay, 
with  a  view  to  violate  it — and  she  shall  be  perfect- 
ly free  from  liability  to  capture,  until  after  she  shall 
have  received  a  warning  from  the  commander  of 
one  of  the  blockading  vessels  of  the  particular  port 
she  is  attempting  to  enter,  and  such  warning  and 
its  date,  is  indorsed  on  her  register,  and  each  ves- 
sel of  every  neutral  nation  is  hereby  expressly  in- 
vited to  violate  the  blockade  of  each  one  of  these 
ports,  and  deliver  a  cargo  tto  he  insurgent  popula- 
tion, and  purchase  and  carry  away  the  produce  of 
their  country ;  and  this  she  may  do  with  entii'e 
impunity,  as  often  as  she  can  succeed  in  avoiding  n 
warning  from  a  naval  commander  off  the  port,  and 
an  indorsement  on  her  register.  If  the  vessel  suc- 
ceed in  getting  in  without  such  warning,  no  offence 
shall  be  held  to  have  been  committed  subjecting 
her  to  capture ;  and  if  the  same  vessel  in  coming 
out^  laden  with  cotton  or  tobacco,  should  be  so  un- 
fortunate as  to  receive  such  warning,  she  will  Ix^ 
liable  to  capture  onl}^  in  the  event  that  she  shall 
again  attempt  to  leave  or  enter  the  same  port." 

That  such  would  be  the  character  of  the  block- 


.'^12  BLOCKADE  OF  THE  SOUTHER]^  POETS. 

ade,  under'  the  construction  claimed,  no  one  will 
deny.  Nor  will  any  one  deny  that  such  could 
never  have  been  the  Executive  intention.  But, 
ar^^ued  the  advocates  of  a  literal  construction  of  the 
language  of  the  proclamation,  the  well-settled  rules 
of  law  do  not  permit  a  court,  in  the  interpretation 
of  a  statute  or  public  instrument,  to  look  beyond 
the  words  and  language  actually  employed — to  in- 
terpolate or  import  into  the  statute  or  instrument 
words  which  are  not  to  be  found  there — or  to  seek 
for  the  intention  elsewhere  than  in  the  very  words 
which  have  been  employed  to  convey  it.  It  was 
urged  that  this  rule,  as  established  by  the  authori- 
ties, was  thus  faithfully  expressed  by  Lord  Den- 
man  (in  the  case  of  Green  vs.  Wood,  7  Q.  B.,  178) : 
"  We  are  bound  to  2;ive  to  the  words  of  the  Icots- 
lature  all  possible  meaning  which  is  consistent  with 
the  clear  lang-uao-e  used ;  but  if  we  find  lansruao-e 
used  which  is  incapable  of  a  meaning,  we  cannot 
supply  one.  It  is  extremely  probable  that  the 
alteration  suggested  would  express  what  the  legis- 
lature meant,  but  we,  looking  at  the  word  as  judges, 
are  no  more  justified  to  introduce  that  meaning,  than 
we  should  be  if  we  added  any  other  provision." 

This  Avas  appropriate  to  the  case  before  the  court ; 
but  here  there  is  no  language  used  AA'hich  is  in- 
capable of  a  meaning,  nor  any  occasion,  in  order 
to  avoid  the  construction  contended  for,  of  supply- 
ing a  meaning,  not  fairly  deducible  from  all  the  lan- 
guage employed. 

The  rule  is  tersely  and  better  expressed  by  Vattel, 
thus :  "  It  is  not  allowable  to  interpret  what  has 
no  need  of  interpretation."     (Lil).  2,  ch.  17,  §  262.) 

But  better  still  by  the  Court  of  Appeals  of  New 


BLOCKADE  OF  THE  SOUTHERN  POETS.  313 

York,  in  the  case  of  Newell  vs.  Tlie  People^  3  Sel- 
den,  97 :  "  AVliether  we  are  considering  an  ao-ree. 
ment  between  parties,  a  statute,  or  a  constitution, 
with  a  view  to  its  interpretation,  the  thing  which 
we  are  to  seek  is  the  thought  ■which  it  expresses. 
To  ascertain  this,  the  first  resort  in  all  cases  is  to 
the  natural  signification  of  the  words  employed^ 
in  the  order  and  OTammatical  arrano-ement  in 
which  the  framers  of  the  instrument  have  placed 
them.  If  thus  regarded,  the  words  embody  a  defi- 
nite meaning,  which  involves  no  ahsurdlty  and  no 
contradiction  hetiveen  different  parts  of  the  same  ■ 
writing,  then  that  meaning,  apparent  on  the 
face  of  the  instrument,  is  the  one  which  alone  we 
are  at  liberty  to  say  was  intended  to  he  conveyed. 
In  such  a  case  there  is  no  room  for  construction. 
That  which  the  words  declare  is  the  meaning  of 
the  instrument;  and  neither  courts  nor  legisla- 
tures have  the  right  to  add  to  or  talce  away  from 
that  meaning." 

And  again,  in  the  case  of  McClushy  vs.  Crom- 
well, 1  Kern.,  601 :  "  It  is  beyond  question  the  duty 
of  courts  in  constiniing  statutes  to  give  effect  to 
the  intent  of  the  law-making  power,  and  seek  for 
that  intent  in  every  legitimate  way.  But,  in  the 
construction  both  of  statutes  and  contracts,  the 
intent  of  the  framers  and  parties  is  to  be  sought, 
first  of  all,  in  the  words  and  language  employed ; 

and,  IF    THE    WORDS    ARTE    FREE  FROM  AMBIGUITY  AND 

DOUBT,  and  express  plainly,  clearly,  and  dis- 
tinctly the  sense  of  the  framers  of  the  instrument, 
there  is  no  occasion  to  resort  to  other  tneans  of  in- 
terpretation. It  is  not  allowable  to  interpret  wliat 
has  no  need  of  interpretatio7i,  and  when  the  words 


314  BLOCKADE   OF   THE    SOUTHEKIS^    POETS. 

have  a  definite  and  precise  meaning,  to  go  elsewhere 
in  search  of  conjecture,  in  order  to  restrict  or 
extend  tlie  meaning." 

Thus  it  is  perceived,  where  the  words  are  not 
free  from  ambiguity  and  doubt,  and  do  not  express 
plainly,  clearly,  and  distinctly,  that  which  is  known 
to  be  the  sense  of  the  framers  of  the  instrument, 
there  is  occasion,  and  it  is  proper,  to  resort  to  other 
means  of  interpretation. 

A  proclamation  which  announces  a  belligerent 
blockade  "  pursuant  to  the  law  of  nations,"  and  then 
proceeds  to  exempt  from  capture  vessels  which  shall 
attempt  to. violate  it — having  full  knowledge  of  its 
existence — can  hardly  be  said  to  be  free  from  ambi- 
guity. Indeed,  it  is  not  easy  to  perceive  how  an 
instrument  could,  in  its  terms,  be  more  ambiguous, 
or  more  obviously  re(|uire  judicial  interpretation, 
to  give  it  any  force  or  effect  whatever. 

The  language  required  to  be  introduced  into  the 
proclamation,  in  order  to  free  it  from  ambiguity  and 
give  it  any  salutary  force,  is  this,  "and  without 
knowledge  thereof,"  so  that  it  shall  read,  "  if,  there- 
fore, with  a  view  to  violate  such  blockade,  and 
without  knowledge  thereof;"  and  this  is  not  an  in- 
terpolation of  words  expressing  an  idea  not  found 
in  the  instrument — because  the  proclamation  ex- 
pressly declares  that  the  blockade  is  to  be  "  pursu- 
ant to  the  law  of  nations,"  and  without  these  words, 
the  blockade  would  be  repugnant  to  the  law  of  na- 
tions, while  with  them  it  would  be  entirely  conso- 
nant ^vith  that  law,  so  that  the  words  are  reallv  no 
interpolation  whatever.  They  but  express  the  mani- 
fest idea  and  intent  of  the  proclamation  when 
announcinoj  a  belli2;erent  blockade. 


'o  o 


BLOCKADE  OF  THE  SOUTHEEN  POETS.  315 

But,  it  was  further  argued  by  tlie  advocates  of 
the  claimant's  construction  of  the  proclamation,  that 
the  addition  of  the  words  "  and  without  knowledge 
thereof,"  would  annul  the  force  of  the  immediately 
previous  words,  "if  with  a  view  to  violate  such 
blockade,"  upon  the  idea  that  a  vessel  could  not  have 
a  view  to  violate  a  blockade  without  knowledge  of 
it.  And  why  not  ?  If  a  vessel  approach  a  block- 
aded port  with  the  view  to  enter,  she  approaches 
with  a  view  to  violate  the  blockade,  whether  she 
knows  of  the  blockade  or  not.  It  is  the  entry  which 
is  the  violation,  and  the  approach  with  a  view  to 
enter  is  an  approach  with  a  view  to  violation,  A 
criminal  violation,  which  is  a  violation  with  knowl- 
edo:e»is  one  thino-.  An  innocent  violation,  which  is 
a  violation  mthout  knowledge,  is  another  and  very 
different  thing. 

The  treaty  of  1794,  between  the  United  States 
and  Great  Britain,  contains  the  following  stipula- 
tion: 

"  Whereas  it  frequently  l.appens  that  vessels  sail 
for  a  port  or  place  belonging  to  an  enemy,  with- 
out hnowing  that  the  same  is  UocJcaded,  it  is  agreed 
that  every  such  vessel  may  be  turned  away  from  such 
port,  but  shall  not  be  detained  nor  confiscated, 
unless  after  notice  she  shall  again  attempt  to  enter." 

The  neutral  commerce  of  Great  Britain,  more 
than  that  of  all  other  nations,  was  to  be  affected  by 
the  belliirerent  blockade  about  to  be  established ; 
and  it  would  almost  seem  as  if  the  framer  of  the 
proclamation  had  this  treaty  before  him,  and  inad- 
vertently omitted  the  insertion  of  the  italicized 
'  words. 

The  fla^-officer  of  the  Atlantic  naval  squadron  of 


316  BLOCKADE  OF  THE  SOUTHERN  PORTS. 

the  United  States,  in  announcing,  eleven  days  after 
the  proclamation  was  issued,  that  the  blockade 
ordered  was  effectively  established,  supplied  the 
omitted  words  by  declaring  that  "  All  vessels,  pass- 
ing the  capes  of  Virginia,  coming  from  a  distance^ 
and  ignorant  of  the  proclamation^  will  be  warned 
off,"  &c. 

Although  immunity  from  capture  was  urged  by 
claimants  upon  the  literal  construction  of  the  Exe- 
cutive proclamation  as  here  stated,  in  many  adjudi- 
cated cases  ^  the  question  seems  to  have  been  judi- 
cially determined,  upon  more  full  discussion,  in  the 
case  of  The  Empress^  decided  in  the  Federal  court 
of  New  York,  and  The  Revere^  decided  by  the  Fed- 
eral court  of  Massachusetts,  and  in  the  case  of  The 
Admiral^  decided  in  the  Federal  court  of  Pennsyl- 
vania, and  afterward  on  appeal  by  the  Circuit  Court 
of  the  United  States  for  the  Third  Circuit. 

The  learned  judge  of  the  District  Court  of  New 
York,  in  deciding  the  former  of  these  cases,  says: 
"But  it  is  contended  by  the  claimants,  that  there  can 
be  no  actual  or  intended  violation  of  the  blockade 
by  a  neutral  vessel,  subjecting  her  to  capture, 
whatever  may  be  her  knowledge  of  its  existence, 
and  whatever  the  moral  turpitude  of  her  acts,  until 
after  she  has  had  official  notice  of  the  fact  that 
the  port  visited  is  under  1  )lockade  indorsed  on  -her 
register;  that  the  offence  to  which  the  penalty 
attaches  can' only  be  committed  by  an  effort  of  the 
vessel  to  ent(T  the  port  after  such  formal  warning 
has  been  received  by  her. 

'  Vide  the  cases  of  The  Hiawatha^  The  Halite  Jackson,  The 
Lynchbunj,  The  Crenshaw,  The  Hannah  M.  Johnson,  The  General 
Oreen.     MS.  Decisions  U.  S.  Dist.  Ct.,  N.  Y. 


BLOCKADE  OF  THE  SOUTHERN  PORTS.  317 

"  This  argument  is  raised  upon  tlie  terms  used  by 
the  President,  in  his  procln.mation  of  April  19th, 
1861,  which  are  :  "  If,  with  a  view  to  violate  such 
blockade,  a  vessel  shall  approach,  or  shall  attempt 
to  leave  any  of  the  said  ports,  she  will  be  duly 
warned  by  the  commander  of  one  of  the  blockad- 
ing vessels,  who  will  indorse  on  her  register  the 
fact  and  date  of  such  warning,  and  if  the  same  ves- 
sel shall  again  attempt  to  enter  or  leave  the  block- 
aded port,  she  will  be  captured,  tfec' " 

The  official  announcement  by  the  proclamation, 
is,  that  the  President  has  deemed  it  advisable  to 
set  on  foot  a  blockade  of  the  ports  of  the  states 
enumerated,  "m  imTsuance-  of  tlie  laws  of  the 
United  States,  and  of  the  law  of  nations^''  and 
Commodore  Pendergrast  on  the  30th  of  the  same 
month,  gave  public  warning  to  all  persons  inter- 
ested, that  he  had  sufficient  naval  force  to  carry  out 
the  blockade,  and  that  "  vessels  passing  the  capes 
of  Virginia,  coming  from  a  distance,  and  ignorant 
of  tlie  blockade^,''  will  be  warned,  <fec. 

"  The  paramount  fact  announced  by  the  procla 
mation,  and  the  public  warning  by  Commodore 
Pendergrast,  was,  that  the  blockade  was  laid  in 
pursuance  of  the  laws  of  the  United  States,  and  of 
the  laws  of  nations.  The  law  of  nations  is  ex- 
plicit and  indubitable,  that  a  neutral  vessel,  know 
ing  a  port  to  be  in  a  state  of  blockade,  and  sailing 
toward  it,  with  intent  to  evade  such  blockade,  com- 
mits a  fraud  upon  the  belligerent  rights  of  the 
blockading  power,  and  is  subject  to  forfeiture  there- 
for (3  Phillimore's  International  Law,  397  ;  Wheaton, 
Int.  Law,  541,  550;  1  Kent,  148,  149;  1  Duer,  on 
Ins.,  663,   §  39 ;  Flander's  Mar.  Law,   1 68,  §  225, 


318  BLOCKADE  OF  THE  SOUTHERN  POETS. 

note  3 ;  2  Arnold's  Mar.  Ins. ;  Y47  Perkins'  ed.)." 
After  a  consideration  of  tlie  question,  how  far,  if  at 
all  this  rule  of  international  law  may  have  been 
modified,  or  relaxed  by  the  latest  authorities  (which 
has  been  quoted  from  this  able  opinion,  in  another 
connection),  the  court  proceeds  : 

"  The  question  then  remains,  whether  this  vessel 
is  exemj)t  from  that  consequence,  by  the  terms  of 
the  President's  proclamation  of  April  19th,  1861. 

"  Previous  to  the  capture  herein,  the  Executive 
order  of  blockade  was  ratified  by  act  of  Congress 
(act  of  August  6th,  1861,  §  3),  and  that  ratifica- 
tion, independent  of  all  adjudications  by  the  coui'ts 
on  the  subject,  disposes  of  the  objection  still  con- 
tinued in  these  defences,  as  to  the  want  of  authority 
in  the  President  to  impose  it,  and  the  only  question 
of  moment  resting  on  the  case,  is,  as  to  the  inter- 
pretation of  its  effect,  under  the  laws  of  the  United 
States,  and  the  law  of  nations." 

"  The  United  States,  as  a  neutral  power,  has  never 
insisted  with  belligerent  nations,  that  the  public 
law,  required,  that  a  neutral  vessel  approaching 
a  blockaded  port,  was,  in  all  cases  entitled  to  re- 
ceive there  notice  of  such  blockade,  and  to  be 
warned  off,  and  be  free  from  liability,  for  an  ap- 
proach to  the  port,  unless  attempted  by  the  neutral 
after  such  warnino-." 

"  This  matter  has  been  made  the  subject  of  early 
treaty  compacts  with  England  in  1794  (8  Stat,  at 
Large,  125,  art.  18),  with  France  in  1800  (8  Stat,  at 
Large,  184,  art.  12),  and  with  various  other  com- 
mercial nations.  By  these  treaties,  the  principle 
recognized  by  this  country,  as  the  accepted  and 
governing  principle  of  international  law,  is  declared 


BLOCKADE    OF    THE    SOUTHERlSr    PORTS.  319 

to  be,  that  a  neutral  vessel,  visiting  a  blockaded 
port,  in  ignorance  of  the  hlochade,  stall  be  entitled 
to  be  warned  off,  and  not  liable  to  arrest,  unless  she 
again  approaches  the  blockaded  port,  with  intent  to 
enter  it.  The  Supreme  Court  of  the  United  States 
regards  these  treaty  compacts  as  the  true  exposition 
of  the  law  of  nations  in  respect  to  blockades.  (^Fitz- 
gihhons  vs.  Newport  Ins.  Co.,  4  Cranch,  199.) 

"This  subject  has  been  amply  discussed  in  the 
jurisprudence  of  the  United  States  in  all  its  bear- 
ings, and  must  be  regarded  as  familiar  to  the  gov- 
ernment and  the  publicists  of  the  country  when  the 
proclamation  of  April  19th  was  published. 

"  The  emphatic  doctrine  announced  in  the  adju- 
dications of  the  courts  of  this  country,  and  set  forth 
in  the  dispatches  of  learned  jurists,  is,  that  a  neutral 
vessel,  going  voluntarily  to  a  blockaded  port,  know- 
ing of  the  blockade,  with  design  to  enter  the  port, 
and  v^ith  whatever  pretence  of  inquiry  or  commu- 
nication thereat,  is  guilty  of  a  fraud  upon  the  bel- 
ligerent rights  of  the  blockading  party,  and  is  liable 
to  condemnation  therefor.  (Cases  before  cited,  5 
Cranch,  335;  6  Cranch,  29;  1  Duer,  691^  notes ; 
note  to  3  Wheat.,  196.) 

"  In  view  of  the  state  of  the  law  and  its  adminis- 
tration, in  regard  to  visitation  of  blockaded  ports 
by  neutral  vessels,  I  think  the  proclamation  of  April 
19th,  1861,  must  be  understood  to  refer  to,  and  em- 
brace only,  those  vessels  approaching  the  port  in 
ignorance  of  its  being  under  blockade.  If  the  fact 
of  its  beino;  blockaded  is  known  to  the  vessel  when 
the  vovao;e  is  undertaken,  it  is  unlawful  for  her  to 
qnter  within  tlie  limits  of  the  blockade  to  seek  in- 
formation  as   to   its   continuance;    and   immunity 


320  BLOCKADE   OF   THE   SOUTHERN    PORTS. 

from  capture  for  siicIl  act,  cannot  be  predicated 
upon  the  terms  of  the  Executive  proclamation." 

The  case  of  The  Revere^  adjudicated  in  the  United 
States  District  Court  of  Massachusetts,  presented 
the  same  question  ;  and  it  is  thus  considered  by  the 
learned  judge  presiding  in  that  district : 

"The  second  ground  of  defence  relied  upon  is, 
that  this  vessel  had  no  warning  indorsed  upon  her 
reo'ister,  as  set  forth  in  the  President's  proclamation 
of^the  19th  of  April." 

"It  is  contended  that,  under  the  proclamation, 
Tlie  Revere^  with  information  of  the  existence  of  the 
blockade,  had  a  right  to  sail  from  Halifax  direct  to 
this  port  (Beaufort),  knowing  of  the  blockade,  and 
to  enter  it,  if  not  there  warned  off,  and  the  warning 
indorsed  on  her  register  by  a  ship  of  war,  in  the 
manner  set  forth  in  the  proclamation ;  and  that, 
until  such  warning,  she  was  not  liable  to  capture 
for  an  attempt  to  enter." 

"  In  support  of  this  proposition,  an  argument  of 
much  force  has  been  presented,  from  the  language 
of  the  proclamation  and  the  decision  of  the  Su- 
preme Court  in  the  case  of  the  Maryland  Ins.  Co. 
vs.  Woods^  6  Cranch,  29,  and  other  authorities,  cited 
l)y  the  counsel  for  the  claimants.  On  the  other 
hand,  it  is  contended,  that  by  the  true  construction 
of  the  proclamation,  only  those  who  are  ignorant 
of  the  blockade  are  entitled  to  a  warning  and  in- 
dorsement ;  and  that  it  is  not  to  be  presumed  that 
a  belligerent  would  gratuitously  narro'^v  his  own 
rights  to  his  own  injury;  that  by  the  Law  of  Na- 
tions this  vessel  had  such  information  and  notice  as 
to  preclude  her  from  the  right  to  inquire  at  the 
port  and  attempt  to  enter. 


BLOCKADE    OF   THE    SOUTHERIS    POETS.  321 

"  This  view  is  strengthened  by  trie  earlier  part 
of  the  proclamation,  which  declares  that  a  block- 
ade is  set  on  foot,  in  pursuance  of  the  laio  of  nation-s: 

"  The  notice  given  to  the  world  by  Commodore 
Pendegrast,  evidently  give?  to  the  proclamation, 
the  construction  contended  for  by  the  captors. 

"After  referring  to  the  proclamation,  and  statir.g 
that  he  had  sufficient  force  for  carrying  it  into 
effect,  he  says :  '  All  vessels  passing  the  capes  of 
Virginia,  coming  from  a  distance,  ond  ignorant  of 
the  proclamation,  mil  be  warned  off.' 

"  The  world  thus  had  notice,  that  those  only  were 
to  be  warned  who  were  ignorant. 

"This  question  of  a  necessity  of  a  warning  and  in- 
dorsement, came  before  the  eminent  admiralty 
judge  in  the  southern  district  of  New  York,  in  the 
case  of  The  Hiawatha^  which  had  left  the  port  of 
Richmond,  and  he  held,  that  previous  knowledge 
of  the  blockade,  dispensed  mth  the  necessity  of 
warning. 

"  In  the  case  of  the  brio-  Hallie  Jackson,  which 
was  attempting  to  enter  a  blockaded  port,  the  same 
learned  judge  held  that  she  was  not  entitled  to  be 
warned  off,  '  if  approaching  with  intent  to  violate 
the  blockade.'  " 

The  learned  judge,  after  thus  clearly  manifesting 
his  opinion  as  to  the  true  construction  of  the  Exec- 
utive proclamation,  proceeds  to  declare  his  views, 
that  even  though  the  literal  construction  of  that 
instrument  were  required,  under  the  rules  of  inter- 
pretation, the  immunity  claimed  by  such  construc- 
tion, could  only  be  set  up  and  availed  of,  by  neutral 
vessels,  whose  acts  had  been  characterized  by  fair- 
ness, good  faith,  and  honesty. 

21 


322  BLOCKADE  OF  THE  SOUTHERN  POETS. 

This  position,  altliougli  it  would  substitute  a 
conditional  immunity  for  tliat  absolute  immunity 
whicli  the  words  of  the  proclamation  would  seem 
to  import,  is  nevertheless  not  without  support,  in 
view  of  the  uniform  decisions  of  prize  courts,  in- 
flictino-  the  penalty  of  confiscation  upon  vessels 
convicted  of  deceptive  practices  upon  belligerent 
rio-hts,  by  simulated  papers  presenting  a  false  des- 
tination, by  mutilation  of  documents,  by  clandestine 
approach,  and  by  false  pretences  of  stress  of  weather, 
want  of  "provisions,  and  the  like,  as  an  excuse  for 
the  attempt  to  enter  an  interdicted  port,  and  even 
declining  to  allow  further  proof  of  the  innocence 
and  neutral  character  of  the  shipper  and  owner  of 
cargo,  captured  on  board  such  vessel. 

If  this  position  be  well  taken,  then  the  question 
of  construction  of  the  proclamation  of  blockade 
becomes  of  inferior  interest  and  consequence,  inas- 
much as  by  far  the  greater  portion,  if  not  all  the 
cases  of  capture,  under  its  provisions,  have  devel- 
oped convincing  proofs  against  the  vessels,  of  dis- 
honest and  fraudulent  practices,  in  some  of  the 
particulars,  for  which  the  penalty  of  confiscation  is 
decreed  by  the  authoritative  decisions. 

The  subject  of  the  right  of  a  neutral  vessel,  in 
time  of  war,  having  previous  knowledge  of  the  ex- 
istence of  a  belligerent  blockade,  to  proceed  upon  a 
voyage  direct  to  the  jiort  blockaded,  with  instruc- 
tions, and  the  design,  in  fact,  to  inquire  at  the  port 
itself,  whether  the  blockade  is  still  in  force,  was 
very  aldy  discussed  by  the  learned  judge  of  the 
Circuit  Court  of  the  United  States  for  the  Third 
Circuit,  in  the  case  of  The  Admiral^  on  ppperd  be- 


BLOCKADE    OF    THE    SOUTHER]Sr    PORTS.  323 

fore  Mm  from  a  final  decree  of  condeinuation  ren- 
dered by  tlie  District  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania. 

His  conclusions,  as  will  be  seen,  are  in  accordance 
Avith  the  well-settled  doctrine  of  the  English  prize 
courts,  and  with  the  recent  decisions  of  the  several 
District  Courts  of  the  United  States. 

The  learned  judge  says  : 

"  I  agree  with  C.  J.  Tindal,  in  Medeiros  vs.  Hill  Opinion  of  Mr. 

o  '  ^  _  '  Justice  Grier. 

8  Bing.,  231,  that  the  mere  act  of  sailing  to  a  port 
which  is  blockaded  at  the  time  the  voyage  com- 
menced, is  not  an  offence  against  the  law  of  nations, 
where  there  is  no  premeditated  intention  of  break- 
ing the  blockade. 

"  Consequently,  if,  in  the  present  case,  The  Admi- 
ral had  taken  out  a  clearance  for  Savannah,  with 
the  expectation  that  the  blockade  might  be  removed 
before  her  arrival,  with  instructions  to  make  inquiry 
as  to  its  continuance,  at  New  Yorh  or  Halifax,  or 
other  neutral  port,  and,  after  having  made  such  in- 
quiry, had  made  no  further  endeavor  to  approach 
or  enter  the  blockaded  port,  her  seizure  and  con- 
demnation as  prize  could  not  have  been  justified. 

"But  this  presents  a  very  different  case.  She 
was  off  Tybee  Island,  sailing  for  the  blockaded 
port.  She  had  made  no  inquiry  on  the  way,  had 
no  reason  to  believe  the  blockade  to  be  raised,  and 
when  arrested  on  her  attempt  to  enter,  she  exhibits 
a  clearance  for  St.  Johns,  New  Brunswick  (a  port 
she  may  be  said  to  have  passed),  and  a  letter  of  in- 
struction from  her  owners,  'to  call  off  the  harbor  of 
Savannah  to  endeavor  to  meet  the  blockading  ship, 
and  get  the  ofiicer  in  command  to  indorse  the  regis- 
ter, ice,  but  to  make  no  attempt  to  run  the  blockade.' 


324  BLOCKADE  OF  THE  SOUTHEEN  POETS. 

"  The  clearance  is  the  proper  document  to  exhibit 
and  disclose  the  intention  of  the  ship.  The  clear- 
ance, in  this  case,  may  not  j)roperly  come  within 
the  category  of  '  simulated  papers,'  but  it  does  not 
disclose  the  whole  truth. 

"  The  suppression  of  a  most  important  part,  makes 
the  whole  false. 

"  It  may  be  true  that  in  times  of  general  peace,  a 
clearance  exhibiting  the  ultimate  destination  of  the 
vessel,  without  disclosing  an  alternative  one,  may 
have  sometimes  been  used  by  merchants  to  subserve 
some  private  purpose. 

"  But  in  times  of  war,  when  such  omissions  may 
be  used  to  blindfold  belligerents  as  to  the  true 
nature  of  the  ship's  intended  voyage,  and  to  elude 
a  blockade,  the  concealment  of  the  truth  must 
be  considered  2^^  prima  facie  evidence  of  fraudulent 
intention. 

'■'Tlie  Admiral^  with  full  knowledge  that  her 
destined  port  is  blockaded,  takes  a  clearance  for 
St.  Johns,  and  is  found  a  thousand  miles  from  the 
proper  course  to  such  a  port,  and  in  the  act  of  enter- 
ing the  blockaded  port,  and  when  thus  arrested,  for 
the  first  time,  inquires  if  such  blockade  i»  raised. 

"A  vessel  which  has  full  knowledge  of  the  exist- 
ence of  a  blockade  before  she  enters  on  her  voyage, 
has  no  right  to  claim  a  warning  or  indorsement, 
when  taken  in  the  act  of  attempting  to  enter.  It 
would  be  an  absurd  construction  of  the  President's 
proclamation  to  require  a  notice  to  be  given  to 
those  who  already  had  knowledge.  A  notification 
is  for  those  only  who  have  sailed  without  a  knowl- 
edge of  the  blockade,  and  got  their  first  intimation 
of  it  from  the  blockading  vessels. 


BLOCKADE  OF  THE  SOUTHEEN  POETS.  325 

"  Now,  the  primary  destination  of  this  vessel  is  to 
a  blockaded  port.  If  the  owners  had  reason  to 
expect  that  possibly  the  blockade  might  be  raised 
before  the  arrival  of  their  vessel,  and  thus  a  profit 
be  made  by  their  ability  to  take  the  first  advantage 
of  it,  then  the  clearance,  in  the  exercise  of  good  faith, 
should  have  made  admission  of  the  true  primary 
destination  of  the  vessel.  If  the  truth  had  appeared 
on  the  face  of  this  document,  and  if  the  master  had 
been  instructed  to  inquire  at  some  intermediate  port, 
and  to  proceed  no  further  in  case  he  found  the 
blockade  still  to  exist,  the  owners  might  justly 
claim  that  their  conduct  showed  '  no  premeditated 
intention  to  violate  the  blockade.' 

"  But  when  arrested  in  the  attempt  to  enter  a 
port  known  to  be  blockaded,  with  a  false  clearance, 
it  is  too  late  to  produce  the  bill  of  lading,  or  letter 
of  instructions,  to  prove  innocency  of  intention. 

"  In  such  cases,  intentions  can  be  judged  only  by 
acts. 

"  The  true  construction  of  this  proceeding,  may  be 
thus  translated : 

"  Enter  the  blockaded  port,  if  you  can,  without 
danger.  If  you  are  arrested  by  a  blockading  vessel, 
inform  the  captain  that  you  were  not  instructed  to 
run  the  blockade,  but  had  merely  called  for  infor- 
mation, and  would  be  pleased  to  have  your  regis- 
ter indorsed,  with  leave  to  proceed  elsewhere. 

"  If  so  transparent  a  contrivance  could  be  received 
as  evidence  of  a  want  of  any  '  premeditated  inten- 
tion to  violate  the  blockade,'  the  important  right 
of  blockade  would  be  a  hmitum  fulmen,  in  the  hauds 
of  a  belligerent. 

"  '  It  would,'  says  Lord  Stowell, '  amount  in  prac- 


32(3  BLOCKADE   OF   THE   SOUTHEIIN    POETS. 

tice  to  a  universal  license  to  attempt  to  enter,  and 
being  prevented,  to  claim  the  liberty  of  going  else- 

wbere.' 

"  In  the  cases  where  the  stringency  of  the  gen- 
eral rule  established  by  this  judge  (but  overruled 
in  Madieros  vs.  HiW)  has  been  relaxed  as  to  Amer- 
ican vessels  in  certain  circumstances,  the  clearances 
were  taken  contingently,  but  directly  for  the  block- 
aded port,  in  the  expectation  of  a  relaxation  of  the 
blockade,  with  instructions  to  inquire  as  to  the  fact 
at  a  British  or  neutral po7^t.  The  clearance  exhib- 
its the  whole  truth,  and  the  place  of  inquiry,  their 
good  faith. 

"  In  these  most  material  facts,  this  case  differs 
from  them." 

With  scarcely  an  exception,  the  British  vessels 
which  have  been  captured,  for  an  attempted  or  in- 
tended violation  of  the  belligerent  rights  of  the 
United  States,  during  the  existing  war,  have  been 
furnished  with  documents,  of  a  similar  deceptive 
character,  to  those  found  on  board  the  Admiral. 

The  neutral  traders  of  Great  Britain  have  been 
permitted  to  make  use  of  the  port  of  Nassau,  as  the 
port  of  clearance  and  departure  of  their  vessels  in- 
numerable, laden  with  arms,  munitions  of  war,  and 
supplies  for  the  insurgents  in  the  southern  states. 

If  these  vessels  have  been  destined  for  a  giTlf 
port  l)lockaded,  their  papers,  concealing  that  fact, 
represent  the  port  of  destination  to  be  Matamoras 
or  Tampico.  If  the  design  has  been  to  violate  the 
blockade  of  an  Atlantic  port,  the  vessel  was  docu- 
mented for  St.  John's  or  Halifax. 

The  ingenuity  of  these  traders  ijy  no  means  equals 
their  cupidity — and  therefore,  in  every  case  of  cap- 


CONTKABAISTD    OF   WAE. 


327 


ture,  the  fraud,  in  some  manner,  has  Ijecome  quite 
transj3arent. 


The  next  exception  to  the  general  right  of  neutral  Contiaband 

/•  I  ±1     '  J.  n  •      commerce  pro- 

nations to  j)ursue  then-  accustomed  commerce,  m  hibited  to  neu- 

time  of  war,  is  that  which  prohibits  their  commerce  ^'^^^  nations. 
with  the  enemy  in  such  articles  as  are  denominated 
contraband. 

What  commerce  shall  be  deemed  contraband,  be- 
tween the  forces  of  belligerent  states  and  the  mer- 
chants of  neutral  nations,  has  occasioned  infinite  dis- 
cussion, and  the  rule  has  been  subjected  to  frequent 
fluctuations,  in  accordance  with  the  prevalence  of 
the  policy  of  the  rigor  of  war  or  the  freedom  of 
commerce.  The  early  elementary  writers  upon  this 
subject  distinguish  between  articles  which  are  use- 
fal  only  as  serving  the  purposes  of  war,  such  as 
arms  and  ammunition ;  such  articles  as  serve  the 
purposes  of  pleasure  simply,  and  such  as  are  of  a 
mixed  nature,  that  is  to  say,  useful  both  in  war 
and  in  peace.  As  to  articles  of  the  third  descrip- 
tion, the  great,  and  perhaps  the  only  difiiculty 
arises ;  for  whether  they  should  be  regarded  as 
contraband  or  not,  depends  entirely  upon  the  cir- 
cumstances existing  at  the  time.^ 

"  The  catalogue  of  contrabands  has  varied  very  what  are  con- 

-,  T     .  T  11  T        T     Ox  11    traband  com- 

much,  and  m  such  a  manner,    says  Lord  btoweil,  modities. 
"  as  to  make  it  very  difficult  to  assign  the  causes 
for  the  variations  ;  owing  to  peculiar  circumstances 
the  reason  of  which  has  not  accompanied  the  history 
of  the  decisions."^     It  is  universally  conceded  that 


'  Hose  vs.  Himeley,  4  Cranch,  272.    ^  Grotius,  Book  III.,  c.  i.,  §  5. 
*  The  Jcmge  Margaretha,  1  Rob.,  189. 


328  CONTKABAND    OF    WAE. 

commodities  particularly  useful  in  war,  sucli  as 
arms,  ammunition,  liorses  and  tlieii^  e(^uipments, 
timber  and  materials  for  ship-building,  and  naval 
stores  of  all  kinds,  are  contraband.^ 
Question  as  to  The  greatest  difficulty  seems  to  have  arisen  in  the 
provisions.  ai*ticle  of  provisious.  On  occasions  when  the  ex- 
pectation has  been  to  accomplish  the  purposes  of 
war  by  reducing  the  enemy  to  famine,  provisions 
have  been  held  to  be  contraband.  At  other  times, 
the  criterion  adopted  by  the  courts,  in  determining 
whether  the  article  of  provisions  is  or  is  not  contra- 
band, has  been,  whether  upon  examination  it  is 
found  to  be  in  a  crude  condition,  or  whether  it  be 
in  a  condition  of  preparation  for  immediate  con- 
sxunption.  On  the  same  principle,  unwrought  iron 
has  been  regarded  with  more  indulgence  than  iron 
fabricated  for  use,  as  anchors,  &c. 

Thus,  too,  hemp  has  been  regarded  as  an  allowable 
article  of  merchandise,  while  cordage  is  contraband ; 
and  wheat  has  been  held  to  be  a  lawful  article  of 
trade,  while  biscuit,  or  any  of  the  final  preparations 
of  it  for  human  use,  are  held  to  be  unlawful.^ 

The  rio;id  rule  of  law,  and  its  modern  relaxations 
as  to  provisions,  are  explained  by  Lord  btowell  in 
a  case  in  which  the  question  was  directly  before 
the  court.^  "  The  right,"  he  says,  "  of  taking  pos- 
session of  cargoes  of  this  description,  going  to^an 


'  Vattel,  Book  III.,  c.  vii.,  §  112. 

'  The  Jonge  Margaretha,  1  Rob.,  189. 

*  The  Haabet,  2  Rob.,  1S2  ;  vide  also,  The  Jonge  Hermanas, 

4  Rob.,  95 ;  The  Gate  Gesellschaft,  4  Rob.,  94  ;  "The  Charlotte 
Fox,  5  Rob.,  275;  The  Twee  Jufroivcn,  4  Rob.,  158;  The  Jonge 
Tobias,  1  Rob.,  329 ;   The  Mana,  1   Rob.,   340 ;   The  Zacheman, 

5  Rob.,  152. 


CONTEABAND    OF    WAR.  ?.29 

enemy's  ports,  is  no  peculiar  claim  of  tMs  country, 
it  belongs  generally  to  belligerent  nations.  The 
ancient  practice  of  Europe,  or  of  several  maritime 
states  of  Europe,  was  to  confiscate  them  entirely. 
A  century  lias  not  elapsed  since  this  claim  has  been 
asserted  by  some  of  them.     A  more  mitio-ated  prac-  ^^  *»,  p™'"- 

^  .  .  .  .  .,    sions  the  nght 

tice  has  prevailed  in  later  times  of  holding  such  of  pre-emption 

T.,  i,,i  •    1  ,       n  1 '  substituted  for 

cargoes  subject  only  to  the  right  oi  pre-emption —  confiscation  in 
that  is,  to  a  right  to  purchase,  upon  a  reasonable  ^^^^^^^  ^^^^s. 
compensation,  to  the  individual  v/hose  property  is 
thus  diverted,  I  have  never  understood,  that  on 
the  side  of  the  belligerents,  this  claim  goes  beyond 
the  case  of  cargoes  avowedly  bound  to  the  enemy's 
ports,  or  suspected,  on  just  grounds,  to  have  a  con- 
cealed destination  of  that  kind ;  or  tliat,  on  the  side 
of  the  neutral,  the  same  exact  compensation  is  to  be 
expected,  which  he  might  have  demanded  from  the 
enemy  in  his  own  port.  The  enemy  may  be  dis- 
tressed by  famine,  and  may  be  driven  by  his  neces- 
sities to  pay  a  famine  price  for  his  commodities ;  if 
they  get  there,  it  does  not  follow  that,  acting  upon 
my  rights  of  war  in  intercej^ting  such  supplies,  I  am 
under  obligation  of  paying  that  price  of  distress." 

In  strictness,  according  to  the  current  of  authori- 
ty of  the  courts,  all  provisions  are  contraband.  In 
this  rude  condition,  however,  the  right  of  confisca- 
tion is  waived  for  the  more  lenient  one  of  pre-emp- 
tion ;  but  the  rigid  rule  of  confiscation  is  applied 
when  the  provision  has  been  manufactured  into  a 
condition  for  immediate  use.^ 

'  Vide  diplomatic  correspondence  between  Mr.  Ilaramond  on 
the  part  of  England,  and  Mr.  Jefferson  and  Mr.  Randolph  on  the 
part  of  the  United  States,  Sept.  12,  1793,  and  April  12,  1794; 
and  Mr.  Pickering  and  Mr.  Monroe,  Sept.  12,  1795.     The  Com- 


33Q  CONTEABAWD   OF    WAE. 

Destined  use,       In  the  determination  of  the  question  of  contra- 
que^UoT^      band,  there  is  no  circumstance  of  so  much  import- 
ance as  that  of  the   destination  of   the  cargo  in 
question. 

"The  most  important  distinction,"  says  Lord 
Stowell,  in  a  case  already  cited,  "  is,  whether  the 
aiiicles  were  intended  for  the  ordinary  use  of  life, 
or  even  for  mercantile  ship's  use,  or  whether  they 
were  going  with  a  very  highly  probable  destination 
to  military  use.  Of  the  matter  of  fact  on  which 
the  distinction  is  to  be  applied,  the  nature  and 
quality  of  the  port  to  which  the  articles  are  going, 
is  not  an  irrational  test.  If  the  port  is  a  general 
commercial  port,  it  shall  Ije  understood  that  the 
articles  were  going  for  civil  use,  although  occasion- 
ally, a  frigate  or  other  ship  of  war  may  be  con- 
structed in  that  port.  On  the  contrary,  if  the 
great  predominant  character  of  the  port  be  that 
of  a  port  of  naval  military  equipment,  it  shall  be 
intended  that  the  articles  w^re  going  for  military 
use,  although  merchant  ships  resort  to  the  same 
place,  and  although  it  is  possible  that  the  articles 
might  have  been  applied  to  civil  consumption ;  for, 
it  being  impossible  to  determine  the  final  applica- 
tion of  an  article,  aiiciiyitis  umls^  it  is  not  an  inju- 
rious rule  which  deduces,  both  ways,  the  final  use 
from  the  immediate  destination ;  and  the  presump- 
tion of  a  hostile  use,  founded  on  its  destination  to 
a  militar}^  port,  is  ver}^  much  inflamed,  if,  at  the 
time  when  the  articles  were  going,  a  considerable 
armament  was   notoriously  preparing,  to  which   a 

moxen,  2  Gall.,  269,  and  1  Wheat.,  382  ;  The  Jonge  Andrews, 
1Y47  ;  The  Zelden  East,  6  Rob.,  93  ;  The  Ranker,  6  Rob.,  125  ; 
The  UJwrrd,  4  Rob.,  G8. 


CONTEABAND    OF   WAK.  331 

supply  of  tliose  articles  would  be  emineutly  use- 
ful.'" 

The  relaxation  of  tlie  rule  of  confiscation  of  ar- 
ticles wliicli  are  decidedly  contraband  in  their  char- 
acter, for  that  of  pre-emption,  is  applied  to  cases 
wliere  the  article  in  question  (as  naval  stores)  is 
the  product  of  the  claimant's  own  country ;  for  it 
is  considered  that  confiscation  would  be  a  harsh 
exercise  of  a  belligerent's  right,  to  prohibit  a  ma- 
terial branch  of  the  neutral's  natural  trade.^ 

With  the  exception,  however,  of  these  cases  of 
relaxation,  substituting  pre-emption  for  confiscation, 
when  the  merchandise  is  clearly  proved  to  be  con- 
traband, confiscation  to  the  captor  ensues  as  of 
course.  The  simple  detention  of  such  articles  would 
be  an  ineifectual  method  of  redress ;  for  it  is  essen- 
tial that  the  apprehension  of  loss  should  operate  as 
a  check  to  the  avidity  of  gain,  and  thus  deter  neu- 
tral merchants  from  all  attempts  to  supply  the  ene- 
my with  such  commodities.  It  is  this  necessity, 
resulting  from  a  proper  regard  for  the  nation's  wel- 
fare and  security,  which  induces  the  declaration 
that  all  such  merchandise,  destined  for  the  enemy's 
country,  shall  be  considered  lawful  prize.  "  On 
this  account,"  says  Vattel,^  "  slie  notifies  to  neutral 

^  The  Jonr/e  Margaretha,  1  Rob.,  194;  vide  also,  The  Nostra 
Senora  de  Ber/ona,  5  Rob.,  99  ;  The  Neptunus,  3  Rob.,  108  ;  The 
Bichmond,  5  Uoh.,  325  ;  The  Brutus,  5  Rob.,  app.  1  ;  The  Jonje 
Jan,  1  Dod.,  458;  The  Endraught,  1  Rob.,  23;  The  Elonora 
Wilhelmma,  6  Rob.,  331;  The  Charlotte,  5  Rob.,  305;  The 
Mend"  Brodee,  4  Rob.,  33 ;   The  Friendship,  6  Rob.,  420. 

""  The  Sarah  Christina,  1  Rob.,  237;  The  Ringande  Jacob,  1 
Rob.,  90  ;  The  Apollo,  4  Rob.,  158  ;  The  Evart  Evarts,  4  Rob., 
354. 

^  Vattel,  Book  III.,  c.  vii.,  §  113. 


332  CONTKABAISD    OF    WAR. 

nations  lier  declaration  of  war,  whereupon  the  lat- 
ter usually  give  orders  to  theii'  subjects,  declaring 
that  if  they  are  captured  in  carrying  on  such  a 
trade,  the  sovereign  will  not  protect  them. 

"  This  rule  is  the  point  where  the  general  custom 
of  Europe  seems  fixed,  after  a  number  of  variations ; 
and,  in  order  to  avoid  perpetual  subjects  of  com- 
plaint and  rupture,  it  has,  in  perfect  conformity  to 
sound  principles,  been  agreed  that  the  belligerent 
powers  may   seize   and  confiscate   all   contraband 
goods  which   neutrals   shall   attempt  to  carry  to 
their  enemy,  without  any  complaint  from  the  sov- 
ereign of  those  merchants,  as,  on  the  other  hand, 
the  j)ower  at  war  does  not  impute  to  the  neutral 
sovereigns  these  practices  of  their  subjects." 
Where  inno-       Upou  the  subject  of  Contraband,  it  has  become 
mSed°wUh^^  a  maxim,  metaphorically  expressed,  that  prohibited 
theSe  o^f  ran-  ^'^I'ticlcs  are  of  an  infectious  nature,,  and  contaminate 
fiscation  ap-   ^he  wholc  cargo.     The  innocence,  therefore,  of  any 
particular  article,  if  mixed  with  such  as  are  unlaw- 
ful, will  not  protect  it  from  confiscation.^ 

If  a  neutral  would  avoid  the  hazard  of  seizure, 
he  must  exercise  circumspection  during  his  entire 
voyage.^  Should  he  touch  at  an  enemy's  port  with 
contraband  articles  on  board,  though  it  be  avow- 
edly for  the  purpose  of  disposing  of  innocent  ar- 
ticles, the  whole  property  becomes  liable  to  seizure 
and  confiscation.^ 
Hostue  dis-        The  couvevauce  of  hostile  dispatches  is  included 

pstcliGS   con- 

traband,  sub-  iu  the  list  of  Contraband,  and  deemed  a  practice  of 
!otoSscat?on  ^  character  so  noxious,  as  justly  to  subject  the  ship 

'  The  Staadt  Emdon,  I  Rob.,  26! 

*  7'/ie  Margaret,  1  Acton,  335. 

^  The  Trende  Svslrc,  6  Rob.,  390,  note. 


COISTTRABAINT)    OF   WAR.  833 

to  confiscation,  and  also  tlie  cargo,  if  tlie  proprietor  and  cargo,  if 
of  the  sliip  is  at  the  same  time  the  owner  of  the  owner  of  the 
cargo.      This   principle  has  become  firmly  estab-  ^^p- 
lishecl  in  a  series  of  cases  in  the  British  admiralty, 
as  well  as  by  the  Lords,  after  the  most  elaborate 
and  learned  discussion.^ 

By  the  ancient  law  of  Europe,  contraband  cargo  ^L^^\^^gJ°f 
rendered  the  ship  as  well  as  cargo  liable  to  con-  cargo  the  an- 
demnation.     "  ISTor  can  it  be  said,"  says  Lord  Stow-  deaiiug  in  con- 
ell,  "  that  such  a  penalty  is  unjust,  or  not  supported  Jh'f ''"jf Jy f' 
by  the  o-eneral  analogies  of  the  law,  for  the  owner  relaxation  of 

i    -,         P.      -,  ^T   .,    .  1         r*  1  modern  prac- 

ol  the  ship  has  engaged  it  m  an  unlawiui  commerce,  tice. 
But  in  the  modern  practice  of  courts  of  admu'alty  in 
this  country,  and  I  believe  of  other  nations  also,  a 
milder  rule  has  been  adopted,  and  the  carrying  of 
contraband  articles  is  attended  only  with  the  loss 
of  fi'eight  and  expenses,  except  where  the  ship  be- 
longs to  the  owner  of  the  contraband  cargo,  or 
where  the  simple  misconduct  of  carrying  a  contra- 
band cargo  has  been  connected  with  other  malig- 
nant and  aggravating  circumstances."^ 

In  the  diplomatic  con-espondence  between  the  ^Jj^Jf^  ^^^^^^ 
United  States  and   Great  Britain,  preliminary  to  s^'^Ject  of  con- 

1  .  r.  11  traband  of 

the  treaty  of  1794,  on  the  subject  oi  contraband  war  between 
of  war,  the  principal  difficulty  arose  in  relation  to  anrthe^uS- 
the  article  of  provisions ;  on  the  part  of  England  by  ^^  ^^^^^s- 

'  The  Atlanta,  6  Rob.,  440;  The  Constitution,  Lords,  July  14, 
1802;  The  Sally  Griffiths,  Lords,  Dec.  12,  1795;  The  Hope, 
Lords,  April  23,  1803;  The  Trende  Sostre,  Lords,  August  5, 
1807;  The  Lisette,  Lords,  May  5,  1807;  The  Consta)dia,  Lords, 
March  15,  1808;  The  aSm saw,  Lords,  April  1,  1808;  The  Caro- 
lina', 6  Rob.,  464  ;  The  Madison,  Edwards,  224  ;  The  Rapid,  Ed- 
wards, 228;   The  Drummond,  1  Dod.,  103. 

■^  The  Ringande  Jacob,  1  Rob.,  89 ;  Tlie  Jonge  Tobias,  1  Rob., 
330  ;  vide  also  Note  to  The  Franklin,  3  Rob.,  221. 


334  THE    EIGHT    OF   SEARCH. 

Mr.  Hammond,  it  being  insisted  tliat  b}^  the  law  of 
nations  all  pro^dsions  Avere  to  be  considered  as  con- 
traband, in  the  case  wliere  depriving  the  enemy  was 
one  of  the  means  employed  to  reduce  him  to  reason- 
able terms  of  peace.  This  position  w^as  strenuously 
resisted  on  the  part  of  the  United  States,  through 
Mv.  Randolph,  Mr.  Jefferson,  and  Mr.  Pinckney, 
contending  that  corn,  flour,  and  meal,  being  the 
produce  of  the  soil  and  labor  of  the  country,  were 
not  contraband,  unless  carried  to  a  place  actually 
invested.  Upon  this  question  no  other  agreement 
was  attained  than  that  provisions  were  not  gener- 
ally contraband,  but  might  become  so,  according  to 
the  existing  law  of  nations  in  certain  cases,  and 
those  cases  were  not  defined,  leaving  to  each  party 
that  construction  of  the  law  of  nations  which  it  had 
assumed. 

As  to  other  articles  of  merchandise,  the  treaty 
provides,  that  "  all  arms  and  ammunition  and  im- 
plements serving  the  purpose  of  war,  all  materials 
serving  directly  for  the  building  and  equipment  of 
vessels,  with  the  exception  of  unwrought  iron,  and 
fir-plank,  tar  and  rosin,  copper  in  sheets,  sails,  hemp, 
cordage,  etc.,"  shall  be  considered  contraband  of 
war.  The  treaty,  so  far  as  its  provisions  relate  to 
this  subject,  has  always  been  regarded  as  merely  de- 
claratory of  the  conceded  law  of  nations,  and  intro- 
ducing no  stipulation  which  would  not  have  been, 
by  that  law,  binding  upon  the  parties  without  the 
treaty. 

The  right  of      The  third  and  onty  remaining  exception  to  the 

visitation   and  ,         ,  ,  .   ^  t       ,  j      i       ii 

search  a  belli-  general  rule,  Avhich  accords  to  neutrals  the  unmo- 
Swishefin  iested  pursuit  of  their  accustomed  commerce,  is  that 


THE   EIGHT   OF   SEARCH.  335 

I'esultino;  from  tlie  rio-lits  of  Ijellio-erents  to  enforce  the  law  of  na- 
the  previous  exception,  wliicli  prohibits  their  com- 
merce in  contraband  commodities,  and  that  is,  the 
right  of  visitation  and  search. 

This  general  right  of  belligerents  has  nuiformly 
been  upheld  by  all  "writers  of  authority  in  the  law 
of  nations.  It  has  always  been  regarded  as  a  sort 
of  necessary  incident  to  the  right  of  prohibiting  con- 
traband trade,  which  right  would  be  almost  nuga- 
tory, but  for  the  incidental  right  of  ascertaining  the 
existence  of  the  contraband  trade  by  a  visitation 
and  search  of  the  neutral  vessel. 

Bynhershoeh,'  Valin,^  Vattel,^  De  Martens,*  all 
agree  in  according  the  right  to  belligerents,  upon 
the  ground  that  the  conveyance  of  contraband 
goods  by  neutrals  cannot  be  prevented  without 
visiting  and  searching  neutral  vessels,  and  that  a 
resistance  to  the  exercise  of  the  right  subjects  the 
resisting  neutral  to  the  penalty  of  confiscation. 

Lord  Stowell  says,  in  the  great  leading  case,  in  Confiscation 
which  the  doctrine  is  discussed  at  length,  and  in  resistance  to 
a  judgment  which  of  itself  is   sufficient  to  place  search  *  ^ 
the   learned  judge  in  the  highest   position  as  an 
authority  in  the  law  of  nations :  "  I  stand  with  con- 
fidence uj)on  all  fair  principles  of  reason,  upon  the 
distinct  authority  of  Vattel,  upon  the  institutes  of 
other  great  maritime  countries,  as  well  as  those  of 
our  own  country,  when  I  venture  to  lay  it  down, 
that  by  the  law  of  nations,  as  now  understood,  a 
deliberate   and  continued  resistance  to  search  on 

*  Bynkerslioek,  Qu.  Jur.  Pub.,  Lib.  I.,  c.  xiv. 
'  Valin,  Ord.  de  la  Ma.,  Li  v.  IIL,  Tit.  9,  Art.  12. 
^  Vattel,  Droit  des  Gens,  Liv.  IIL,  c.  vii.,  §  114. 
*De  Marten's,  Precis.,  Lib.  YIIL,  c.  vii.,  §  321. 


336  THE   EIGHT    OF   SEARCH. 

the  part  of  a  neutral  vessel,  to  a  lawful  cruiser,  is 
followed  by  tlie  legal  consequence  of  a  confisca- 
tion."^ 

Chancellor  Kent  says :  "  Tlie  duty  of  self-preser- 
vation gives  to  belligerent  nations  this  right,  and 
the  doctrine  of  the  English  admiralty  on  tlie  right 
of  visitation  and  search,  and  on  the  limitation  of  the 
right,  has  been  recognized  in  its  fullest  extent  by 
the  courts  of  justice  in  this  country."^ 

The  right  of  search  is  strictly  a  war  right,  and 
does  not  exist,  except  by  treaty  stipulation,  in  time 
Applies  to  of  peace.^  It  is  a  right  which  is  confined  to  pri- 
Soniy!^  ^^^  ^^^6  merchant  vessels,  and  does  not  apply  to  pub- 
lic ships  of  war.  The  immunity  of  public  ships 
and  vessels  of  war  from  the  exercise  of  any  juris- 
diction, other  than  that  of  the  sovereign  power  to 
which  they  belong,  has  been  uniformly  asserted 
and  conceded.*  •? 

How  eier-  The  risfht  of  visitation  and  search  must  be  con- 
ducted  with  as  much  regard  to  the  safety  of  the 
vessel  detained  as  is  consistent  with  a  thorough 
examination  of  the  character  of  the  vessel. 

If  the  neutral  has  acted  with  candor  and  good 
faith,  and  the  inquiry  has  been  wrongfully  pursued, 
the  belligerent  cruiser  is  responsible  to  the  neutral 
in  costs  and  damao;es.^ 

In  the  exercise  of  the  right,  the  cruiser  may  resort 
to  stratagem,  as  by  assuming  the  disguise  of  a  friend 

'  The  Maria,  1  Rob.,  368.         2  Kent's  Com.,  L,  153  et  seg.  . 

*  Le  Louis,  2  Dob.,  248;   The  Antelope,  10  Wheat.,  119. 

*  The  Prins  Frederick,  2  Dod.,  451 ;    The  Exchange  vs.  McFad- 
den,  1  Cranch.,  116;  L" Invincible,  1  Wheat.,  238. 

*  The  Anna  Maria,  2  Wheat.,  327  ;  2  Mason,  439. 


cised 


THE    PvI&HT    OF    SEARCH.  337 

or  enemy  ;  and  if,  in  consequence  of  sucli  stratagem, 
the  crew  of  tlie  detained  vessel  abandon  their  duty 
without  being  made  prisoners  of  war,  and  the  ves- 
sel is  thereby  lost,  the  captors  are  not  liable.^ 

The  rio-ht  of  visitation  and  search  has  been  con-  Treaty  pro- 

^  .  .  .   .         visions. 

stantly  recognized  by  treaties  between  maritime 
nations,  and  stipulations  are  introduced  specifying 
the  manner  in  which  the  ris^ht  shall  be  exercised. 
It  is  usually  provided  that  the  searching  vessel 
shall  remain  not  nearer  than  cannon-shot  distance 
from  the  ship  visited,  and  shall  send  a  boat  with 
not  more  than  two  sitters,  beside  the  rowers,  which 
two  persons  shall  inspect  the  ship's  papers,  of  which 
the  form  is  usually  fixed  by  the  treaty.  K  these 
papers  are  found  regular,  and  affording  no  reason 
for  detention,  the  ship  is  to  be  allowed  to  proceed. 
If,  however,  there  are  circumstances  which  are  re- 
garded as  suspicious,  it  is  proVided  that  the  ship 
may  be  brought  in  further  inquiry,  subject  to  a 
claim  for  costs,  expenses,  and  damages,  if  the  deten- 
tion shall  have  been  capricious  or  unreasonable. 
Treaties,  embracing  substantially  these  provisions, 
were  made  between  France  and  the  United  States 
in  1778  ;  between  the  United  States  and  the  States- 
General  in  1782  ;  between  the  United  States  and 
Sweden  in  1783. 

In  the  exercise  of  the  right  of  visitation  and  Ships'  papers 
search  upon  a  neutral  vessel,  the  fii'st  object  of  in-  exam^ei 
quiiy  is,  generally,  the  ship's  papers.     These  are : 

1.  The  passport,  being  the  letter  of  license  from 
the  neutral  power  to  proceed  on  the  voyage.     This 

'  The  Eleanor,  2  Wheat.,  345 ;   The  George,  1  Mason,  24. 
22 


338  THE   RIGHT    OF   SEARCH. 

pa.-s,  to  be  regular,  must  "be  specific  and  not  general, 
and  describe  explicitly  tlie  true  parties.^ 

2.  Tlie  sea-letter  or  brief,  specifying  the  nature 
and  quantity  of  cargo,  tlie  place  of  lading,  and 
place  of  destination. 

3.  The  documentary  proof  of  property. 

4.  The  muster-roll  of  the  ship's  company,  which 
should  set  forth  not  only  the  names,  but  ages,  con- 
dition, place  of  residence,  and  birth  of  each. 

5.  The  charter  party,  if  any,  which  may  serve  to 
authenticate  the  facts  connected  with  the  jproof  of 
neutrality. 

6.  The  bills  of  lading,  showing  the  nature  of  the 
obligation  between  the  master  or  owner  and  shipper. 

7.  The  invoices  or  manifest,  showing  the  particu- 
lars of  the  cargo,  by  whom  shipped,  and  to  whom 
consigned. 

8.  The  log-book,  being  the  journal  of  the  ship's 
voyage,  and  of  each  day's  progress  and  occurrences. 

9.  The  bill  of  health,  being  a  certificate  that  no 
contagious  disease  prevailed  at  the  place  of  dej^ar- 
ture  of  the  ship,  and  that  none  of  the  crew  were  in- 
fected with  such  distemper  ;  and 

10.  The  letter  of  instructions  to  the  master,  with 
which,  es2:)ecially  in  times  of  war,  a  neutral  master 
should  always  be  provided.  These  instructions 
should  always  be  produced.  The  withholding  them 
has  been  held  a  just  cause  of  suspicion,  authorizing 
detention.^  These  letters  of  instruction,  or  the  other 
papers,  should  always  show  the  alternative  destina- 
tion  of  a   ship,  so  as   to  establish  the  fact  that 

'  The  Hoop,  1  Rob.,  129  ;   The  Elizabeth,  5  Rob.,  4. 
'  The  Concordia,  1  Rob.,  120. 


THE    EIGHT    OF    3EAKCH.  339 

sucli  alternate  destination  be  fair  and  not  fraudu- 
lent.' 

All  tlie  papers  sliould  be  produced.  If  any  are 
kept  back,  it  finnislies  just  ground  of  suspicion,  and 
authorizes  detention.^ 

Tlie  production  of  false  papers  has  always  been 
held  a  just  cause  of  suspicion,  justifying  seizui'e, 
although  under  some  peculiar  circumstances  it  has 
been  held  not  to  be  such  conclusive  proof  as  war- 
rants condemnation,  if  the  circumstances  are  clearly 
explained. 

The  spoliation  of  papers  has  been  considered  a 
circumstance  of  a  much  more  aggravated  nature, 
which  may  exclude  proof,  and  be  sufficient  of  itself 
to  establish  guilt.  But  in  the  courts,  both  of  Eng- 
land and  the  United  States,  the  spoliation  of  papers 
has  not  been  regarded,  as  in  other  maritime  countries, 
as  sufficient  to  create  an  absolute  presumption,  ^uris 
et  de  jure^  and  they  have  allowed  proof  that  such 
spoliation  was  the  result  of  accident,  of  necessity  or 
of  superior  force.^  But  such  explanatory  proof,  to 
repel  the  presumption,  must  be  prompt  and  frank, 
without  prevarication  or  any  evidence  of  bad  faith.* 

The  Question  whether  the  right  of  search  could  The  right  of 

.       T    ,        ,     TT  ,  ,      -,  •-,.         search  of  mer- 

be  exercised  by  belligerents  upon  neutrals  sailing  chant  vessels 
under  convoy,  underwent  much  discussion  about  a  coivoy/"^*^^^ 
century  since.     In  1762  it  was  contended  by  the 

'  The  Juffrau  Anna,  1  Rob.,  120  ;  The  E'enrom,  1  Rob.,  6  ;  The 
Odin,  1  Rob.,  122  ;   The  Vigilanlia,  1  Rob.,  1. 

'  The  Calypso,  2  Rob.,  158. 
•     ^  Th-:  Pizarro,  2  Wheat.,  227. 

*  The  Two  Brothers,  1  Rob.,  1-33;  inde  Bernardi  vs.  Motteaux, 
Doug.,  581 ;   The  Adriana,  1  Rob,,  317. 
15 


340  THE   EIGHT    OF   SEARCH, 

Dutch  o-overnment,  tliat  merchant  vessels  sailing  - 
under  convoy  were  exemj^ted  from  search.  After 
much  altercation  it  resulted  in  a  treaty  stipulation, 
recognizing  the  exemption.  Such  treaty  stipula- 
tions have  been  entered  into  from  time  to  time  be- 
tween several  maritime  nations ; — between  Sweden 
and  the  United  States  in  1783,  between  the  United 
States  and  Prussia  in  1785,  between  the  United 
States  and  Morocco  in  1787,  and  between  the  Unit- 
ed States  and  France  in  1800.  Indeed,  at  the  close 
of  the  last  century,  the  doctrine  of  exemption  of 
merchant  vessels  sailing  under  convoy,  was  recog- 
nized ])y  all  the  principal  maritime  nations,  with 
the  exception  of  Spain  and  Great  Britain. 

In  1787  an  attempt  was  made  by  a  SWedish 
claimant  to  enforce  the  exemption  in  the  British 
courts  of  admiralty,  in  a  case  in  which  a  capture 
was  made  of  a  fleet  of  Swedish  merchantmen,  sailing 
under  convoy,  by  a  British  squadron  in  the  Eng- 
lish channel,  under*  command  of  Commodore  Law- 
ford,  for  a  resistance  to  search.  This  was  the  case, 
before  alluded  to,  in  which  Lord  Stowell,  so  elab- 
orately and  with  such  masterly  ability  and  learn- 
ing, discusses  the  entire  doctrine  of  the  belligerent 
right  of  search.  Upon  this  point  he  says,  as  a  con- 
clusion :  "  With  regard  to  the  question  of  convoy, 
the  authority  of  a  sovereign  of  a  neutral  country, 
being  interposed  in  any  manner  of  mere  force,  can- 
not legally  vary  the  right  of  a  lawfully  commis- 
sioned belligerent  cruiser.  Two  sovereigns  may 
unquestionably  agree,  as  they  have  agreed,  in  some 
late  instances,  that  the  presence  of  one  of  their 
armed  ships  along  with  merchant  ships,  shall  be 
mutually  understood  to  imply  that  nothing  is  to  be 


THE    RIGHT    OF    SEARCH. 

found  in  tliat  convoy  of  mercliant  ships,  inconsist- 
ent witli  amity  and  neutrality,  and  if  they  consent 
to  accept  this  pledge,  no  third  party  has  a  right  to 
quarrel  with  it,  any  more  than  with  any  other 
pledge,  which  they  agree  mutually  to  accept.  But 
surely^  no  sovereign  can  legally  compel  the  accept- 
a/nce  of  such  a  security,  hy  mere  force.  The  only 
security  known  to  the  law  of  nations,  upon  this 
subject,  independent  of  all  special  covenant,  is  the 
right  of  personal  visitation  and  search,  to  be  exer- 
cised by  those  who  have  an  interest  in  making  it." 

In  the  spring  of  1800,  a  collision  on  the  same 
subject,  took  place  between  Great  Britain  and  Den- 
mark.^ A  Danish  frigate  convoying  merchantmen 
resisted  the  search  of  a  British  frigate  near  Gibraltar, 
and  the  Danes  having  fired  upon  the  boats  sent  to 
efifect  the  search,  reparation  was  demanded  of  the 
Danish  government  by  the  British  minister  at  Co- 
penhagen. A  long  and  interesting  diplomatic  cor- 
respondence resulted  between  the  two  governments, 
pending  which,  or  directly  upon  its  expiration, 
another  cause  of  complaint  occuiTed  between  the 
same  governments  upon  the  same  suljject,  by  a 
resistance  to  search  by  Danish  merchantmen  under 
convoy,  which  resulted  in  a  short  engagement,  and 
a  surrender  of  the  Dane  to  the  British  squadron  as 
prize  of  war.  Negotiations  again  ensued  between 
the  two  governments.  Terms  of  settlement  of  the 
immediate  occasion  of  the  difiiculties  were  agreed 
upon,  without  any  stipulation  upon  the  question  of 
'  the  belligerent  right  of  search  of  merchant  vessels 

'  The  Maria,  1  Rob.,  340,  378. 


341 


342  THE   EIGHT    OF   SEARCH. 

under  convoy,  referring  that  to  ulterior  discussion  ; 
but  hefore  the  convention  was  signed,  the  emperor 
of  Russia  succeeded  in  securing  the  agreement  of 
the  governments  of  Prussia,  Sweden  and  Denmark, 
to  unite  with  Russia  in  an  armed  neutrality  against 
Great  Britain,  and  in  August,  1800,  an  embargo, 
without  notice,  in  violation  of  the  treaty  between 
Russia  and   Great  Britain  of   1766,  was  laid   by 
Russia  on  British  proj^erty  in  Russian  ports.    After 
much  intermediate  correspondence,  resulting  in  no 
measures  of  pacification,  on  the  14th  of  January, 
1801,  the  British  government  laid  an  embargo  on 
Russian,  Danish  and  Prussian  vessels  in  her  ports. 
To  this  succeeded  various  measures,  more  or  less 
hostile  in  their  character,  between  the  contending 
parties,  culminating  in  the  battle  of  Copenhagen  on 
the  2d  of  April,  1801,  which  laid  the  Danish  capital 
at  the  mercy  of  Great  Britain.     An  armistice  suc- 
ceeded, durino-  which  it  was  ao;reed  that  the  con- 
nection   of  Denmark   with   the    armed   neutrality 
should  be  suspended.     Paul,  the  emperor  of  Rus- 
sia died  about  the  same  time,  and  being  succeeded 
by  Alexander,  friendly  negotiations  were  immedi- 
ately entered  into  with  Great  Britain,  in  which  the 
principle  of  "  free  ships,  free  goods,"  theretofore 
claimed  by  Russia,  was  abandoned,  and  the  prin- 
ciple that  the  presence  of  ships  of  war  as  a  convoy, 
should  protect  neutral  merchants  from  search,  was 
recognized  by  Great  Britain.     A  treaty  with  these 
stipulations   was    concluded,    and    acceded   to    by 
Sweden  on  the  30th  of  March,  and  by  Denmark 
on  the  23d  of  October,  1802. 

A  resistance  to  the  right  of  search  by  a  neutral^ 
as  we  have  seen,  subjects  both  vessel  and  cargo  to 


THE   EIGHT    OF   SEAHCH.  343 

confiscation ;  but  a  resistance  to  searcli  by  an  eneni}^ 
does  not  entail  tlie  penalty  of  confiscation  upon 
neutral  cargo  on  board  the  vessel,  because  sucli  a 
resistance  violates  no  belligerent  duty  on  the  part 
of  the  master,  who  is  justified  in  escaping  if  he  can.^ 

In  1810  the  Danish  government  passed  an  ordi- 
nance, by  which  they  declared  subject  to  condem- 
nation, "  such  vessels  as,  notwithstanding  their  flag 
is  considered  neutral,  as  well  with  regard  to  Great 
Britain,  as  with  the  powers  at  war  mth  the  same 
nation,  still,  either  in  the  Atlantic  or  Baltic,  have 
made  use  of  English  convoy." 

Several  American  vessels,  sailing  under  British 
convoy,  were  captured  for  violation  of  this  ordi- 
nance, and,  together  with  the  cargoes,  were  con- 
demned. An  interesting  correspondence  ensued 
between  Denmark  and  the  United  States,  for  a 
detailed  statement  of  which,  the  student  is  referred 
to  the  valuable  treatise  of  Dr.  Wheaton.^  The 
difficulty  was  settled  by  a  payment  of  a  sum  by 
Denmark,  accepted  as  sufficient  to  liquidate  Amer- 
ican claims,  but  no  decision  was  agreed  to  upon  the 
question  of  the  right  claimed  by  Denmark,  it  being 
stipulated  that  the  settlement  should  not  be  in- 
voked as  a  precedent  by  either  party. 

The  rio;ht  of  searchino;  neutral  merchant  vessels  The  right  of 

o  ...  .         searching 

for  the  purpose  of  ascertaining  if  any  persons  owmg  ships  of  war. 
allegiance  as  subjects  or  citizens  to  the  nation  of  the 
searching  vessel  are  employed  on  board,  has  been 
made  the  subject  of  angry  discussion  and  national 
confficts. 

'  The  Catherina  Elizabeth,  5  Rob.,  232. 

*Wheaton's  Elements  of  International  Law,  IL,  260,  278, 


344  THE   EIGHT    OF   SEARCH. 

Great  Britain  lias  heretofore  demanded  tliat  tlie 
riglit,  for  this  piu'pose,  should  apply  indiscrimi- 
nately to  all  vessels.  This  right  was  resisted  by 
Holland  in  1653,  and  although  that  nation  was 
beaten  by  the  English  in  the  hostilities  ensuing, 
yet  she  never  submitted  to  this  claim  by  Great 
Britain  in  the  terms  of  any  subsequent  pacification. 

This  claim,  too,  on  the  part  of  Great  Britain,  gave 
rise  to  a  serious  collision  between  that  country  and 
the  United  States,  early  in  the  present  century, 
which  resulted  in  open  hostilities  in  1812,  the  occa- 
sion and  the  history  of  which  are  familiar  to  the 
intelligent  reader. 

Upon  the  return  of  peace,  the  treaty  which  was 
entered  into  at  Ghent,  did  not  include  a  settlement 
of  this  question.  At  a  subsequent  period,  in  1818, 
negotiations  upon  the  subject  were  resumed,  and 
the  question,  not  only  of  impressment,  but  of  block- 
ade, contraband,  trade  with  the  colonies  of  a  belli- 
gerent, prize  coui'ts,  letters  of  marque,  and  all  the 
great  questions  involving  the  great  interests  of 
commerce  in  time  of  war,  were  elaborately  dis- 
cussed, for  the  purpose  of  being  defined  and  settled 
by  conventional  stipulations. 

By  the  4th  article  of  the  proposed  treaty  Great 
Britain  was  to  surrender  all  claim  of  right  to-im- 
pressment  on  the  high  seas,  and  it  was  agreed  be- 
tween the  negotiators  that  formal  lists  of  American 
and  British  seamen  should  be  made,  and  that  they 
should  determine  the  rights  of  nationality  in  any 
disputed  case.  But  on  the  part  of  Great  Britain  it 
was  desired  that  all  seamen  who  were  to  be  consid- 
ered citizens  of  the  United  States  should  be  natural- 
ized before  the  signature  of  the  treaty ;  while  on 


THE    KIGHT    OF    SEAECII.  345 

the  part  of  the  United  States,  it  was  desired  that  the 
limitation  should  extend  to  the  ratification  of  the 
treaty.^  and  upon  this  trivial  difference  the  negotia- 
tions of  1818  terminated.^ 

In  the  discussions  between  the  United  States 
and  Great  Britain,  in  1842,  growing  out  of  the  dif- 
ferences relative  to  the  north-eastern  boundarv  of 
the  United  States,  dividing  the"  state  of  Maine 
from  the  British  possessions,  and  which  resulted  in 
the  Ashburton  treat}^,  Mr,  Webster  on  the  part  of 
the  United  States  government,  declared,  that  the 
rule  as  to  the  right  of  search,  hereafter  to  be  in- 
sisted upon,  would  be,  "  that  every  regularly  docu- 
mented American  merchant  vessel,  would  be  evi- 
dence  that  the  seamen  on  board  were  American, 
and  would  find  their  protection  in  the  flag  that  was 
over  them." 

Althouo-h  the  rip^ht  of  search  is  obviously  and  i^ig^*  of 
essentially  a  belligerent  right,  there  being  no  power  of  the  sup- 
whatever  in  government  vessels  to  search  merchant-  siaTttode.*^  ^ 
men  in  time  of  peace,  yet  such  a  power  or  privi- 
lege, like  any  other,  may  be  mutually  conceded,  by 
treaty  between  nations.      We  accordingly  find  that 
such  privilege  has  been  in  this  manner  accorded 
and  established  in  the  single  case  of  searching  ves- 
sels navigating  in  certain  latitudes  to  ascertain  if 
they  have  any  slaves  on  board. 

Treaty  stipulations  to  this  effect  were  entered 
into  between  Great  Britain  and  Portugal  in  July, 

'  Vide  Mr.  Rush's  Narrative  of  a  Residence  at  the  Court  of 
London,  p.  376. 


^iC)  NEU.TEAL   JURISDICTION. 

1817;  between  Great  Britain  and  Spain  in  Sep- 
tember, 1817  ;  between  Great  Britain  and  tlie  Neth- 
erlands in  May,  1818;  and  between  Great  Britain 
and  Sweden  in  1824. 

By  such  mutual  concessions,  national  pride  and 
national  jealousy  were  alike  sacrificed  in  tbe  great 
cause  of  humanity  ;  and  this,  on  the  part  of  Great 
Britain  especially,  was  indeed,  no  inconsiderable 
sacrifice — fully  justifying  the  noble  sentiments  ex- 
pressed upon  the  occasion  by  Sir  James  Mackin- 
tosh : 

"For  myself,  I  feel  a  pride  in  the  British  flag 
being,  for  this  object  alone,  subjected  to  search 
by  foreign  ships.  It  has  now  risen  to  loftier 
honor  by  bending  to  the  cause  of  justice  and  hu- 
manity. That  which  has  braved  the  mighty,  now 
lowers  itself  to  the  feeble  and  defenceless,  to  those, 
who,  far  fi^om  being  able  to  make  us  any  return, 
will  never  hear  of  what  we  have  done  for  them, 
and  are  probably  ignorant  of  our  name."^ 

Neutral  terri-  Oiie  topic  ouly  rcmaius  for  consideration,  em- 
by^^bemge?-  ^  braccd  mthin  the  general  subject  of  this  chapter — 
^^^^-  and  that  is,  the  immunity  of  neutral  territory  from 

the  violence  of  belligerents. 

It  is  a  well-established  principle  in  the  laW  of 
nations,  that  no  hostile  operations  can  be  conducted 
or  committed  in  a  neutral  territory.  This  immu- 
nity extends  not  only  to  the  actual  territory,  hut 
the  entire  neutral  jurisdiction,  which  includes  the 
ports,  harbors,  and  bays  of  a  neutral  state,  and 
such   distance  from   the   shore  as   the  custom  of 

'  Mackintosh's  Life,  by  his  Son,  vol.  TI.,  393,  S94. 


]0;UTEAL   .TURISDICTIOlSr.  347 

nations  admits  or  establishes  as  within  jurisdic- 
tional limits — a  marine  league  being  the  distance 
usually  so  considered. 

It  follows,  therefore,  that  if  captures  are  made  by  Captures  uie- 

.  .  -  •   1  •  1  "i  gal  made  with- 

beliigerent  parties  anywhere  withm  such  neutral  in  neutral  jur- 
jui'isdiction,  they  are  illegal  and  void,  and  restitu- 
tion of  the  captured  property  must  be  ordered  on 
behalf  of  the  owner  or  claimant.  This  doctrine  is 
asserted  by  all  the  great  writers  upon  the  law  of 
nations,  with  but  one  exception,  that  of  Bynker- 
shoek,  who,  while  admitting  the  general  validity 
of  the  rule  of  immunity,  contends  that  an  exception 
or  qualification  exists  in  the  case  of  a  vessel  that 
has  been  chased  by  a  cruiser  wdthin  neutral  juris- 
diction, and  has  been  captured  there  dum  fervet 
opus,  if  such  capture  can  be  made  without  injury 
to  the  neutral  power.  But  this  exception  seems 
never  to  have  been  recognized  or  acted  upon ;  on 
the  contrary,  the  immunity  has  been  uniformly  held 
to  be  absolute,  without  any  exception  whatever.* 

So  vigorous,  indeed,  has  been  the  enforcement  of 
this  rule,  that  prizes  made  by  vessels  cruising  off 
and  on  or  near  a  neutral  port,  have  been  ordered 
to  be  restored  by  the  British  courts  of  admiralty  ; 
and  many  neutral  states  have  adopted  regulations 
whereby  a  belligerent  vessel  is  not  allowed  to  leave 
their  ports  within  twenty-four  hours  after  the  de- 
parture of  another  belligerent  vessel  from  the  same 
port. 

But  though  captures  may  not  be  made  within  Neutral  states 
neutral  jurisdiction,  yet,  being  made  outside,  and  reieasTcap- 

'  Bynkershoek,  Qu.  Jur.  Pub.,  Lib.  I.,  c.  viii. ;  vide  Jefferson 
Correspondence,  vol.  III.,  page  243  ef  seq. 


348  NEUTEAL   JUEISDICTION. 

tures  brought  brought  into  neutral  ports,  no  power  of  restitution 

^or°tsty  beUi-  or  releasB  exists  on  tlie  part  of  the  neutral,  except 

gerents.         where  some  treaty  intervenes,  or  the  capture  has 

been  made  in  ^dolation  of  its  own  neutrality  laws 

and  reo;ulations. 

Formerly  captors  were  not  allowed  to  carry  their 
prizes  into  neutral  ports ;  now,  however,  the  custom 
and  practice  of  nations  is  altogether  otherwise,  and 
it  is  the  invariable  opinion,  even  of  such  as  are  most 
jealous  of  neutral  rights  and  privileges,  that  a  neu- 
ti'al  state  has  no  power  to  interfere  with  prizes 
brought  into  her  ports,  with  the  exception  S23eciiied. 

In  a  great  number  of  instances,  however,  treaty 
stipulations  have  intervened,  and  changed  the  rule 
of  non-interference. 

As  early  as  the  year  1406  such  a  treaty  was 
made  between  Henry  IV.  and  the  Duke  of  Bur- 
gundy. 

The  United  States  government  has  a  treaty  stip 
ulation,  modifying  the  rule  of  non-interference,  so 
far  only  as  to  j^rohibit  the  sale  of  prizes  taken  by 
belligerents  at  war  with  either  party  in  their  ports, 
T^'ith  France,  in  1Y78  ;  and  again  iu  1800,  a  treaty 
between  the  United  States  and  the  United  Prov- 
inces, made  in  1782,  allows  to  each  party  the  right 
to  sell  any  prizes  brought  by  it  into  the  ports  of 
the  other. 

No  treaty  stipulation  upon  the  subject  exists  be- 
tween the  United  States  and  Great  Britain. 


THE  CASE  OF  THE  TEENT.  349 


THE  CASE  OF  THE  "TRENT." 

Since  the  publication  of  tlie  first  editiou  of  tliis 
work,  a  case  of  historic  interest  and  importance  lias 
arisen,  OTowino-  out  of  the  civil  Avar  in  the  United 
'States,  connected  with  the  subject  of  the  foregoing 
chapter,  which  demands  something  more  than  a 
cursory  notice,  Iot  it  involves  a  virtual  abandon 
ment  by  Great  Britain,  of  certain  belligerent  rights 
as  against  neutral  commerce,  always  theretofore  per- 
tinaciously asserted  and  maintained  by  that  nation, 
and  the  consequent  vindication  of  the  position  hith 
erto  assumed  by  the  United  States  government,  in 
the  negation  of  such  asserted  rights. 

On  the  8th  of  Noveml)er,  1861,  the  United  States 
war  steamer  San  Jacinto  overhauled  the  British 
merchant  steamer  Trent^  in  the  Bahama  Channel, 
pursuing  a  voyage  from  Havana  to  Southamj^ton, 
England,  via  St.  Thomas.  In  the  legitimate  exer- 
cise of  the  belligerent  right  of  search,  the  merchant 
steamer  was  brought  to,  and  upon  being  boarded, 
a  demand  was  made  for  the  exhibition  of  her  papers 
and  passenger  list,  to  the  boarding  officers.  This 
demand  was  resisted,  and  it  became  necessary  to 
resort  to  force  to  accomplish  the  search. 

On  board  the  vessel  were  found  two  persons, 
named  Mason  and  Slidell,  with  their  clerks  or  sec- 
retaries. These  two  persons  were  citizens  of  the 
United  States — for  many  years  they  had  been  sena- 
tors in  the  Conirress  of  the  nation,  and  had  been 
pampered  with  places  of  honor,  and  trust,  and 
power,  and  emolument,  in  tbeir  country's  service. 
They  had  become  conspirators,  rebels,  and  traitors 
against  that  country  to  Avhich  they  owed  so  deep  a 


350  THE  CASE  OF  THE  TEENT. 

del)C  of  love,  and  honor,  and  gratitude.  They  were 
leaders  in  that  vile  revolt,  whose  gigantic  enormity 
of  wickedness  finds  no  parallel  in  the  world's  history. 

Availing  of  the  fit  opportunity  of  darkness  and 
storm,  they  had  evaded  the  blockade  of  the  port  of 
Charleston,  and  were  on  their  way,  in  the  capacity 
of  ambassadors,  armed  wdth  dispatches  from  their 
insurgent  chiefs,  the  one  to  England,  and  the  other 
to  France,  and  clothed  with  the  mission  of  enlisting 
the  sympathy  and  aid  of  those  nations,  in  their  un- 
holy efifort  to  extinguish  republican  liberty  in  the 
United  States. 

The  character  of  these  persons,  the  nature  of  their 
mission,  and  their  clandestine  departure  from  their 
country,  were  well  known  to  the  master  and  all  on 
board  the  merchant  vessel,  who  had  aided  in  their 
escape,  and  endeavored  to  conceal  their  persons. 
The  commander  of  the  San  Jacinto,  notwithstanding- 
their  protest  and  resistance,  caused  these  persons, 
with  their  secretaries,  to  be  removed  from  the  Trent^ 
and  taken  on  board  his  ship,  in  which  they  were 
conveyed  to  the  United  States,  where,  upon  their 
arrival,  they  were  confined  as  prisoners  of  state. 

In  his  report  of  their  capture,  addressed  to  the 
secretary  of  the  navy  of  the  United  States,  on  the 
loth  of  the  month,  he  says:  "It  was  my  determina- 
tion to  have  taken  possession  of  the  Trent^  and  sent 
her  to  Key  West  as  a  prize,  for  resisting  the  search, 
and  caiTying  these  passengers,  whose  character  and 
ol^jects  were  well  known  to  the  captain ;  but  the 
reduced  number  of  my  officers  and  crew,  and  the 
large  number  of  passengers  on  board,  bound  to 
Europe,  who  would  l)e  put  to  great  inconvenience, 
decided  me  to  allow  them  to  proceed." 


THE  CASE  OF  THE  TBENT.  351 

There  can  be  no  doubt  that,  had  he  pursued  his 
first  intent,  by  the  law  of  nations,  as  well  estab- 
lished, both  in  Great  Britain  and  the  United  States,^ 
the  vessel  must  have  been  condemned  as  lawful 
prize,  by  reason  of  her  resistance  to  the  search 
of  the  belligerent  cruiser — and,  guided  alone  by  that 
law  as  laid  down  by  the  courts  of  England,  her  con- 
demnation would  have  been  quite  as  certain,  by 
reason  of  her  voluntary  employment  in  the  carrying 
of  these  rebel  emissaries  and  their  dispatches. 

In  the  light  of  subsequent  events,  however,  it 
may  well  be  doubted,  whether  that  law  would  have 
been  allowed  its  legitimate  operation,  without  the 
armed  protest  of  that  power  in  whose  jurisprudence 
it  was  esta1)lished,  and  whose  flao;  had  been  dese- 
crated  by  the  infamous  service  in  which  the  vessel 
had  been  employed. 

The  secretary  of  the  navy  of  the  United  States, 
in  a  brief  note,  addressed  to  the  commander  of  the 
San  Jacinto^  on  the  30th  of  November  following, 
congratulated  him  "  on  the  great  public  service  he  • 
had  rendered  in  the  capture  of  the  rebel  commis- 
sioners," and  while  refraining  from  the  expression  of 
"  an  opinion  on  the  course  pursued  in  omitting  to 
capture  the  vessel  which  had  these  public  enemies 
on  board,"  nevertheless  declares  "  that  the  forbear- 
ance exercised  in  this  instance,  must  not  be  permit- 
ted to  constitute  a  precedent  hereafter,  for  infrac- 
tions of  neutral  obligations." 

Immediately  after  information  of  the  arrest  of 
these  malefactors  was  received  at  Washino-ton,  the 
secretary  of  state  addressed  a  brief  note  to  the 

'  The  Maria,  1  Rob.,  368.      The  Antelojje,  10  Wheat.,  119. 


352  THE  CASE  or  THE  TRENT. 

Amei'ican  minister  at  tlie  Court  of  St.  James,  stating 
tlie  facts  of  the  arrest,  that  it  was  made  without 
special  instructions  from  the  government,  and  ex- 
pressing a  hope  that  "  the  British  government 
woukl  consider  the  subject  in  a  friendly  temper." 

On  the  30th  of  ISTovember,  Earl  Eussell  addressed 
a  note  to  Her  Britannic  Majesty's  minister  at  "Wash- 
ington, Lord  Lyons,  reciting  a  garbled  and  untruth- 
ful version  of  the  case,  which  had  been  given  by 
the  officers  of  the  Trent ^  in  requital  for  the  generous 
forbearance  extended  toward  them,  and  proceeding 
as  follows : 

"It  appears  that  cei'tain  individuals  have  been 
forcibly  taken  from  on  board  a  British  vessel,  the 
ship  of  a  neutral  power,  wliile  such  vessel  was  j)ur- 
suing  a  lawful  and  innocent  voyage — an  act  of  vio- 
lence which  was  an  affront  to  the  British  flasf,  and 
a  violation  of  international  law" — and  concludins" 
with  a  demand,  couched  in  the  declaration,  that  the 
"liberation  of  the  four  gentlemen  named,  and  their 
•  delivery  to  your  lordship,  together  with  a  suitable 
apology  for  the  aggression,"  could  alone  satisfy  the 
British  nation. 

Before  proceeding  to  relate  the  result  of  this 
demand,  and  the  motiVes  which  led  to  that  result, 
it  may  be  well  to  consider  the  character  of  the 
demand  itself,  and  how  far  it  was  warranted  by  an 
infi'action  of  international  law,^ — uj^on  which  it  is 
ostensilily  based, — as  that  law  has  been  estal)lished 
and  administered  by  British  authority  -and  prece- 
dent. 

It  must  be  remembered,  in  the  outset,  that  the 
slaveholders'  insurrection  a2:ainst  the  o-overnment 
of  the  United  States,  so  for  as  Great  Britain  was 


THE  CASE  OF  THE  TRENT.  353 

concerned,  early  assumed  the  character  of  a  w^r,  in 
wliich  the  contending  parties  were  vested  with  the 
like  authorities  and  rights  of  belligerents,  as  if  the 
contest  were  waged  between  independent  nations. 

This  was  recognized  and  declared,  after  elaborate 
parliamentary  debate,  by  the  terms  of  Her  Majesty's 
proclamation  of  neutrality. 

Althouojh  it  was  conceded  at  the  time,^  that  this 
recognition  might  be  sustained  by  precedent,  it 
was,  nevertheless,  sufficiently  obvious  to  any  un- 
prejudiced mind,  that  a  generous  nation,  uninflu- 
enced by  those  ignoble  and  selfish  motives  which 
would  seek  the  overthrow  of  a  government  in 
which  human  liberty  has  reached  a  higher  develop- 
ment than  the  world  has  yet  seen,  because  that 
liberty  grows  out  of  a  written  constitution  which 
asserts  the  capacity  of  man  for  self-government,  and 
is  not  based  upon  the  divine  right  of  kings  and 
lords  to  govern  the  people — a  nation  actuated 
solely  by  the  higher,  and  purer,  and  nobler  motive 
of  promoting  the  cause  of  human  liberty,  wherever 
established,  and  however  maintained,  might  prop- 
erly and  justly  have  declared  that  the  existing 
precedents  furnished  no  imperative  rule  of- action 
for  the  case  of  an  insurgent  people,  in  revolt,  for  the 
avowed  purpose  of  conquering  the  liberty  of  estab- 
lishing the  perpetual  bondage  of  a  portion  of  the 
human  race.  Yet  the  British  nation  sa\v  fit  to 
place  itself  upon  other  ground,  and  under  the 
transparent  shelter  of  controlling  precedent,  pub- 
lished her  recognition  of  the  belligerent  status  and 
rights  of. the  slaveholding  insurgents,  as  well  as 


'  Vide  ante,  p.  13. 
23 


354  THE  CASE  OF  THE  TRENT. 

that   of  the   nation   against  whicli   they  were   in 
rebellion. 

This  is  important,  for  the  reasons  solely,  that  the 
act  of  the  commander  of  the  San  Jacinto^  for  which 
reparation  was  demanded  by  Great  Britain,  is  de- 
fensible only  as  the  exercise  of  a  lawful  belligerent 
right. 

The  right  of  public  vessels  of  a  belligerent  nation 
to  arrest  upon  the  high  seas,  and  search  all  mer- 
chant vessels  of  a  neutral  power,  for  the  purpose  of 
ascertaining  if  they  are,  in  any  manner,  employed 
in  the  service  of  the  adverse  belligerent,  is  a  right 
which  has  never  been  denied  or  questioned  by  any 
authority  among  nations. 

The  employment  of  a  neutral  merchant  vessel  in 
the  service  of  a  belligerent  power,  by  the  law  of 
nations,  subjects  her  to  the  penalty  of  confiscation, 
if  captured  l)y  the  public  vessel  of  the  adverse  bel- 
ligerent, while  engaged  in  that  service. 

By  th^  law  of  nations,  as  asserted  by  the  British 
elementary  ^vi'iters,  and  as  laid  down  and  adminis- 
tered by  her  courts,  the  carrying  of  ambassadors, 
dispatches,  or  military  persons  of  a  belligerent,  by 
a  merchant  vessel  of  a  neutral  power,  is  such  an 
employment  as  subjects  the  vessel,  if  captured  in 
the  service,  by  the  public  ship  of  the  adverse  beb 
ligerent,  to  the  like  penalties,  as  if  engaged  in-  the 
carrying  of  contraband  of  war,  for  the  service  of 
the  enemy. 

"  The  belligerent  may  stop  the  ambassador  of  the 
enemy  on  his  passage,"^  says  Sir  William  Scott,  the 
great  British  oracle  of  public  law.     And  again,  he 

'  The  Atalanta,  6  Rob.,  440. 


THE   CASE   OF   THE   TREIS^T.  355 

says  :  "It  seems  to  me,  on  principle,  to  l")e  but  rea- 
sonable, that  wlienevei-  it  is  of  sufficient  importance 
to  the  enemy,  that  such  persons  should  he'  sent  out 
on  the  public  service,  at  the  public  expense,  it  should 
afford  equal  ground  of  forfeiture  against  the  vessel 
that  may  be  let  out  for  a  purpose  so  intimately  con- 
nected with  hostile  operations."  ^ 

The  numerous  decisions,  as  well  by  the  British 
courts  of  admiralty,  as  by  the  Lords,  establishing 
this  doctrine,  as  also  the  doctrine  that  the  convey- 
ance of  hostile  dispatches  justly  subjects  the  offend- 
ing ship  to  confiscation,  were  cited  in  the  first 
edition  of  this  work.'^ 

It  should  be  borne  in  mind  that  there  was  no 
pretence  of  the  practice  of  an  imposition  upon  the 
neutral  vessel,  the  Trent,  by  the  smuggling  or  con- 
cealing the  rebel  emissaries  on  board  of  her,  upon 
her  voyage  between  neutral  ports.  Their  character 
and  mission  were  alike  notorious  ;  and  the  service 
was  undertaken  with  the  fall  knowledge  that  it  was 
a  service  in  behalf  of  the  insurgents  in  the  United 
States,  recognized  as  belligerents  by  Great  Britain, 
and  it  was  boldly  entered  upon  as  such  service. 

From  the  notorious  character  of  the  emissaries, 
it  was  well  known  that  their  dispatches  from  those 
who  sent  them  (their  letters  of  authority  being 
dispatches  of  the  highest  character),  must  neces- 
sarily have  been  borne  with  them,  and,  of  course, 
not  deposited  in  the  mail  bags  of  the  packet. 

The  case,  therefore,  does  not  come  within  the  ex- 
ception suggested  by  Mr.  Phillimore,  in  his  able 
treatise  on  international  law,  nor  can  it  be  regarded 

»  The  Orozemho,  6  Rob.,  434.  '  Vide  p. . 


3  0(3  THE    CASE   OF   THE   TRENT. 

as  coining  within  the  principle  urged  by  the  justly 
ce]cl;>ratejd  French  writer  upon  the  rightf^.  of  neutral 
nations,  Hautefeuille,  in  combating  the  extreme 
doctrine  upon  this  subject  of  "the  official  organ  of 
the  English  admiralty." 

"  The  advocate  of  Her  Britannic  Majesty,  in  the 
office  of  admiralty,"  Mr.  Phillimore  says,  "  with  re- 
spect to  such  a  case  as  might  exempt  the  carrier  of 
dispatches  from  tlie  usual  penalty,  it  is  to  be  ob- 
served, that,  where  the  commencement  of  a  voyage 
is  in  a  neutral  country^  and  is  to  terminate  in  a 
neutral port^  or  at  a  port  to  which,  though  not  neu- 
tral, an  open  trade  is  allowed,  in  such  a  case  there 
is  less  to  excitfi  the  \agilance  of  the  master,  and 
therefore  it  may  be  proper  to  make  some  allowance 
for  any  imposition   tlmt  may  he  practised  upon 

And  Hautefeuille  says : 
•  "A  packet-boat,  charged  with  a  postal  service, 

receives  all  the  letters,  all  the  dispatches  which  are 
committed  to  it  hy  the  post-office^  without  exception 
— it  is  not  thus  acting  for  a  special  case — is  not  in 
the  service  of  the  belligerent  state,  and  simply  dis- 
•  charges  the  mission  intrusted  to  it  in  peace  as  well 
as  in  war.  If,  among  the  letters  with  which  it  is 
thns  freighted,  there  be  found  dispatches  of  war, 
whatever  may  be  their  importance,  the  vessel  has 
failed  in  none  of  the  duties  of  neutrality,  has  com- 
mitted no  act  of  war,  has  not  become  denational- 
ized, since  she  has  simply  performed  the  commis- 
sion intrusted  to  her  by  her  own  government,  a 
neutral  government,  and  a  commission  compatible 

'  3  Phill.,  371. 


THE   CASE    OF   THE   TEENT.  35^ 

with  tlie  duties  of  neutrality.  Moreover,  it  can  be 
affirmed  that  slie  lias  committed  no  act  of  contraband 
of  war."  ^ 

And  again,  lie  says :  "  The  opinion  of  Sir  Wil- 
liam Scott  can  have  no  weight  in  my  eyes.  As  the 
official  organ  of  the  English  admiralty,  he  was 
bound  to  sustain  the  doctrines  of  his  country.  He 
has  clothed  them  with  all  the  prestige  of  his  leain- 
ing  and  his  talent.  But  if  we  adopt  his  system, 
all  correspondence  would  become  impossible  in 
time  of  war,  between  neutrals  and  belligerents, 
and  -even  very  difficult  between  nations  remain- 
ing loyal  spectators  of  the  struggle,  except  through 
the  intervention  of  the  belligerent  that  is  most 
powerful  on  the  sea."  "No  neutral  ship  would 
consent  to  take  charge  of  the  postal  service,  in  the 
fear  that  a  suspected  letter  should  be  found  among 
the  dispatches,  and  thus  compromise  her  safety. 
Consequently,  the  belligerent  that  was  the  most 
powerful,  would  alone  become  charged  with  the 
maritime  correspondence  of  the  world,  and  it  is  easy 
to  comprehend  the  advantage  it  might  draw  from 
the  monopoly."  ^ 

Regarding  the  employment  in  which  the  Trent 
was  engaged,  solely  in  the  light  of  British  author- 
ity, to  be  characterized  in  conformity  with  British 
precedent,  maintained  by  that  government  in  the 
plenitude  of  her  belligerent  power,  against  the  pro- 
tests of  all  neutral  nations,  one  may  not  readily 
reconcile  the  assertion,  that  the  obnoxious  individ- 
uals were  "taken  from  on  board  a  British  vessel, 

'  Droit  des  Nations  Neutres^  465. 

'  Hautefeuille,  Droit  des  Nations  Neutres,  466,  468. 


358  THE  CASE  OF  THE  TEENT. 

the  ship  of  a  neutral  power,  while  such  vessel 

WAS    PUESUIXG   A    LAWFUL    AND   INNOCENT  VOYAGE," 

with  that  high-toned  integrity  which  should  ever 
pervade  the  public  declarations  of  those  who  are 
intrusted  with  a  nation's  destiny,  and  which  has 
been  not  unfrequently  paraded  as  the  peculiar 
attribute  of  the  British  statesman. 

For  what  particular  cause,  or  on  what  sj^ecific 
ground,  the  removal  of  the  emissaries  of  the  insur- 
rectionists from  on  board  the  Trent^  by  the  com- 
mander of  the  San  Jacinto^  was  regarded  as  a  viola- 
tion of  international  law,  Earl  Russell  does  not  ven- 
ture to  state  in  his  note  to  Lord  Lyons. 

But  the  world  is  not  left  in  ignorance  of  the  real 
and  sole  cause  of  complaint,  and  that  cause  suffi- 
ciently accounts  for  this  singular  reticence  of  the 
British  minister. 

Publicity  has  been  given  to  the  professional 
opinion  of  the  law  officers  of  the  British  Crown, 
and  the  action  of  the  government  is  known  to  have 
been  based  upon  that  opinion. 

Had  Earl  E-ussell  expressed  the  precise  ground 
of  complaint  of  the  removal  of  the  rebels  from  the 
British  vessel,  as  an  infraction  of  international  law, 
as  the  same  is  embraced  in  the  opinion  of  the  law 
officers,  the  world  would  have  read  in  amazement, 
substantially  as  follows : 

"  We  do  not  complain  that  a  public  armed  ves- 
sel of  the  United  States  subjected  a  British  mail 
steamer  to  visitation  and  search  upon  the  high 
seas; 

"We  do  not  contend  that  the  British  mail  steamer 
was  not  lawfully  subject  to  capture  and  confiscation, 
for  resisting  the  exercise  of  this  belligerent  right ; 


THE   CASE    OF   THE   TEENT.  359 

"We  do  not  contend  that  tlie  Britisli  mail  steamci-, 
although  upon  a  voyage  between  neutral  ports,  was 
not  lawfully  subject  to  capture  and  confiscation  by 
a  cruiser  of  the  United  States,  for  being  employed 
in  carrying  the  ambassadors  of  the  adverse  belliger- 
ent of  that  nation,  with  their  hostile  dispatches, 
with  fall  knowledge  of  their  character  and  mission, 
and  that  they  must  have  been  the  bearers  of  such 
dispatches : 

"But  we  do  complain  that  the  commander  of 
the  ship  of  war  of  the  United  States  did  not  make 
capture  of  the  British  mail  steamer,  place  a  prize 
crew  on  board,  and  carry  her,  with  her  cargo,  into  a 
port  of  the  United  States,  for  adjudication  in  her 
courts  as  lawful  prize  of  war,  leaving  her  numerous 
passengers  to  find  their  way  to  their  homes  as  best  ■ 
they  might,  and  to  find  their  damages  for  detention 
and  delay,  against  the  owners  of  the  British  mail 
steamer,  as  best  they  could; 

"And  we  do  complain  that,  instead  of  the  exer- 
cise of  this  generous  and  merciful  forbearance,  by 
the  commander  of  the  San  Jacinto^  he  contented 
himself  with  the  simple  removal  of  the  hostile  am- 
bassadoi's,  with  theii'  hostile  dispatches,  from  the 
offending  vessel  (they  not  being  apparently  ofiacers 
in  the  naval  or  military  service  of  the  enemy),  thus 
usurping  the  authorit)^  vested  in  the  prize  courts  of 
the  United  States,  and  substituting  the  adjudication 
of  a  naval  ofiicer  for  that  of  a  judge  of  his  country, 
vested  with  the  power  of  administering  international 
law." 

In  such  terms  must  have  been  conveyed  the  ex- 
pression of  what  is  perfectly  known  to  have  been 
the  true  ground  upon  which  the  British  cabinet 


360  1"HE   CASE   OF   THE   TEENT. 

saw  fit  to  regard  the  act  in  question  as  an  infraction 
of  international  law.  It  will  be  conceded  that  it 
was  wise  to  be  silent. 

But  how  stands  British  authority  and  British 
precedent  upon  this  question  of  the  right  of  removal 
of  hostile  ambassadors  and  dispatches  from  a  neu- 
tral vessel,  by  a  j)ublic  belligerent  cruiser,  the  sole 
ground  of  British  comj^laint  of  the  act  of  the  com- 
mander of  the  San  Jacinto^  as  a  violation  of  inter- 
national law  ? 

Durino;  the  war  between  Great  Britain  and  her 
colonies,  afterward  the  United  States,  the  colonial 
government  dispatched  as  ambassadors  to  Holland, 
then  a  neutral  power,  Henry  Laurens,  a  former 
President  in  the  Congress  of  the  country,  vested 
with  power  to  secure  from  that  power  a  recognition 
of  the  united  colonies  as  an  independent  nation — 
to  conclude  a  treaty,  and  to  negotiate  a  loan.  In 
1780  he  left  Charleston,  on  board  the  brigantine 
Adriana,  bound  to  Martinique.  From  thence  he 
took  passage  in  a  Dutch  packet,  the  Mercury^  for 
Holland,  and  thus,  was  on  board  a  neutral  vessel, 
sailing  between  neutral  ports. 

When  three  days  out  from  Martinique,  the  Mer- 
Guoy  was  overhauled  by  the  British  frigate  Vestal. 
Mr.  Laurens,  with  his  secretary,  were  forcibly -re- 
moved from  on  board  the  Mercury^'  his  papers 
were  seized ;  they  were  taken  in  the  Vestal  to  St. 
Johns,  Newfoundland,  and  thence,  by  an  order  of 
the  British  admiralty,  he,  with  his  secretary,  were 
taken  to  England,  and  he  was  committed,  as  a  pris- 
oner, to  the  Tower  of  London,  on  a  charge  of  high 
treason.  The  British  reverse  at  Yorktown  soon 
changed  the  character  of  his  confinement  to  that  of 


THE  CASE  OF  THE  TEENT.  361 

a  prisoner  of  war,  and  lie  was,  not  long  thereafter, 
released,  in  exchange  for  Lieutenant-general  Lord 
Coruwallis.^ 

Where  is  the  failure  of  analogy,  in  any  single 
point,  between  this  remarkable  British  precedent 
and  the  case  under  consideration  ? 

During  the  period  which  succeeded  the  recogni- 
tion by  Great  Britain  of  the  independence  of  the 
United  States,  and  the  declaration  of  war  of  1812, 
between  those  nations,  the  diplomatic  correspond- 
ence between  the  two  governments  is  mainly  de- 
voted to  the  persistent  assertion  and  maintenance 
of  this  alleged  belligerent  right  of  the  cruisers  of 
Great  Britain,  of  arresting  neutral  vessels  upon  the 
high  seas,  and  upon  the  mere  -nc  volo,  sic  juheo  of 
the  naval  commander,  removing  therefrom  any  per- 
son therein  claimed  to  be  a  British  subject,  and  the 
constant  denial  of,  and  protest  against,  such  assert- 
ed right,  on  the  part  of  the  government  of  the 
United  States. 

Numberless  were  the  victims  of  this  asserted 
belligerent  right.  Two  nephews  of  Washington,' 
as  stated  by  Mr.  Jefferson,  on  their  return  from 
Europe,  were  forcibly  removed  from  the  protection 
of  the  flag  of  the  United  States,  and  compelled  to 
the  service  of  seamen,  under  the  discipline  of  a 
British  man-of  war.  During  the  discussion  of  the 
subject  on  the  floor  of-  the  British  House  of  Com- 
mons, Lord  Castlereagh  conceded  that  a  govern- 
ment investigation  had  disclosed  the  fact  that  in 
the  British  fleet  there  were   three  thousand  five 

'  Vide  Sparks'  Diplomatic  Corrrespondence  of  the  Revolution, 
vol.  2,  p.  461. 


362  THE  CASE  OF  THE  TEENT. 

hundred  men  claiming  to  be  impressed  Americ^np. 
And,  it  is  said,  tliat  six  thousand  of  such  cases  were 
recorded  in  the  state  department  of  the  United 
States.  Six  thousand  times,  as  it  has  been  truly 
said,  "  American  citizens,  without  any  form  of  law, 
at  the  mere  mandate  of  a  navy  officer,  who,  for  the 
moment,  acted  as  a  judicial  tribunal,  were  dragged 
away  from  the  protection  of  the  American  flag,  and 
the  deck  which  should  have  been  to  them  a  sacred 
altar." 

For  the  avowed  purpose  of  asserting  a  municipal 
claim  to  personal  service,  the  belligerent  right  of 
search  was  invoked,  and  six  thousand  times  the 
quarter-deck  of  British  cruisers  became  "  a  floating 
judgment-seat,"  upon  which  were  sacrificed  the  dear- 
est rights  of  American  citizens.  And  how  shall  be 
compared  the  municipal  claim  of  Great  Britain  to 
the  personal  service  of  her  subjects  as  seamen  in 
her  navy,  upon  which  alone  the  exercise  of  this 
right  was  sought  to  be  vindicated,  to  the  municipal 
claim  of  the  United  States  to  the  persons  of  these 
her  rebel  citizens  and  traitors,  that  they  might  be 
visited  with  the  just  punishment  of  treason,  and 
thereby  be  made  to  serve  as  an  example  and  a  warn- 
ing to  coming  generations  ! 

Although  the  war  of  1812,  between  Great  Britain 
and  the  United  States,  was  mainly  incited  by  the 
pei'sistent  exercise  of  this  asserted  right  by  the 
British  government,  it  was  not  renounced  by  that 
power,  at  the  treaty  of  peace  concluded  at  Ghent, 
and  the  negotiations  which  from  time  to  time  have 
been  set  on  foot  by  the  United  States  government, 
during  the  administration  of  each  succeeding  Presi- 
dent, with  the  express  purpose  of  procuring  from 


THE  CASE  or  THE  TKENT.  363 

Great  Britain  a  renunciation  of  this  asserted  claim 
of  right,  have  all  been  unavailing. 

No  recorded  act  of  Great  Britain,  since  her  exist- 
ence as  a  belligerent  power,  until  the  30th  of  No- 
vember, 1861,  the  date  of  the  demand  upon  the 
United  States  government,  contained  in  the  note 
of  the  British  Premier  to  Lord  Lyons,  can  be  con- 
strued into  a  renunciation  of  what  the  Prince  Re- 
gent (afterward  George  IV.)  proclaimed  at  the 
palace  of  Westminster,  in  1813,  as  the  "  undoubted, 
and  HITHERTO  UNDISPUTED  right  of  -searcJiing  mer- 
chant vessels  in  time  of  war,  and  the  im'pressment 
of  British  searrien  when  found  therein^ 

Having"  thus  considered  the  character  of  the  de- 
mand  made  by  Great  Britain  upon  the  United 
States,  for  the  surrender  to  the  former  power,  of  the 
traitorous  citizens  of  the  latter,  taken  by  an  Ameri- 
can cruiser  from  on  board  a  British  merchant  ves- 
sel, employed  to  carry  them  upon  their  traitorous 
mission,  and  having  seen  how  utterly  unwarranted 
was  that  demand,  by  reason,  of  any  violation  of  in- 
ternational law,  in  their  capture  and  removal,  as 
that  law  has  been  established  and  administered  by 
British  authority  and  British  precedent,  it  may  be 
safely  left  to  the  judgment  of  impartial  history  to 
determine,  whether,  under  all  the  circumstances, 
such  a  demand  was  altogether  fit  to  be  made ;  and 
whether,  that  nice  sense  of  national  honor,  which  is 
the  1)asis  of  public  security,  and  which  compre- 
hends as  well  the  integrity  that  will  not  offer,  as 
the  spirit  that  will  not  submit  to  an  injury,  did  not 
imperatively  forbid  it. 

That  such  a  demand  made  upon  Great  Britain 
while  a  belligerent,  by  a  neutral  nation,  would  have 


334  THE  CASE  OF  THE  TEENT. 

been  met  by  instant  rejection,  and  its  enforcement 
by  armed  resistance  to  the  end,  no  one  can  doubt 
who  is  at  all  familiar  with  the  claims  hitherto 
asserted  and  maintained  by  that  power.  It  was 
probably  the  conviction  that  such,  under  the  like 
circumstances,  would  have  been  her  own  action, 
which  led  to  the  conclusion  that  it  would  be  the 
course  pursued  by  the  United  States,  for  the  de- 
mand was  immediately  followed  by  gigantic  war- 
like preparations  and  expenditures  on  the  part  of 
Great  Britain,  in  the  avowed  anticipation  of  hostili- 
ties between  that  country  and  the  United  States. 

But,  for  such  cause,  this  was  not  to  be.  Far 
otherwise,  and  in  manner  more  noble  than  by  an 
appeal  to  arms,  was  the  honor  of  the  latter  nation 
triumphantly  vindicated. 

On  the  27th  of  December,  shortly  after  the  British 
demand  was  communicated  by  Lord  Lyons  to  the 
American  government,  her  secretary  of  state  ad- 
^  dressed  his  reply  to  the  British  minister.     In  that 

paper,  Mr.  Seward,  at  great  length,  and  with  the 
dignified  and  masterly  manner  which  characterizes 
all  the  productions  of  that  distinguished  statesman, 
analyzes  the  principles  of  international  law  which 
are  involved  in  the  case,  and  shows  that  an  adher- 
ence to  those  principles  for  which  the  governjment 
of  the  United  States,  as  a  neutral  power,  has  con- 
tended against  Great  Britain,  as  a  belligerent,  since 
her  independent  existence,  imperatively  requires  a 
compliance  with  the  demand  which  Great  Britain 
saw  fit  to  make.  And  in  view  of  the  opportunity 
which  the  case  afl:brded,  for  the  assertion  of  those 
principles  in  such  manner  as  could  not  fail  to  estab- 
lish a  precedent,  of  a  character  so  memorable  and 


THE  CASE  OF  THE  TEENT.  365 

decisive  as  to  be  binding,  in  tbe  eyes  of  the  world, 
iipon  the  future  action  of  Great  Britain,  the  distin- 
guished secretary  might  well  say,  in  closing  his 
response,  "The  four  persons  in  question  will  be 
cheerfully  liberated." 

It  did  not,  of  course,  comport  with  the  character 
of  a  public  document  of  the  nature  of  a  diplomatic 
note,  to  enter  upon  a  detailed  exposition  of  the  his- 
tory of  the  prolonged  contest  by  the  United  States, 
for  the  supremacy  of  those  principles  of  public  law 
which  this  demand  by  Great  Britain  at  length  pre- 
sented the  happy  opportunity  to  consummate.  That 
task  remained  to  be  performed.  On  the  6th  of 
January,  1862,  the  President  of  the  United  States 
transmitted  to  the  Senate  a  message,  relative  to  the 
recent  removal  of  certain  citizens  of  the  United 
States  from  the  British  mail  steamer  Trent,  by  order 
of  Captain  Wilkes,  in  command  of  the  United 
States  war  steamer  San  Jacinto.  On  a  motion  to 
refer  that  message  to  the  committee  on  foreign 
affairs,  Mr.  Sumner,  the  chairman  of  that  committee, 
addressed  the  Senate  upon  the  subject,  in  a  speech 
which  will  be  preserved  with  the  juridical  learning 
of  the  age,  as  one  of  its  noblest  monuments. 

In  that  speech,  the  distinguished  senator  from 
Massachusetts  (of  whom  it  may  be  as  truly  said  as 
of  him  to  whom  the  praise  was  first  accorded,  "  mul- 
turn  quod  tetigit  non  ornavif)  fairly  and  nobly 
completes  and  rounds  off  the  labor,  which  had  been 
left,  "  in  outline  rough  and  bold,"  by  the  secretary 
of  state. 

,  The  senator  premises,  that,  "If  this  transaction 
be  regarded  exclusively  in  the  light  of  British 
precedents — if  we  follow  the  seeming  authority  of 


366  THE   CASE    OF   THE   TREISTT. 

the  British  admiralty,  speaking  "by  its  greatest 
voice;  and  especially  if  we  accept  the  oft-repeated 
example  of  British  cruisers,  upheld  by  the  British 
government,  against  the  oft-repeated  protests  of  the 
United  States,  we  shall  not  find  it  difficult  to  vin- 
dicate it.  The  act  becomes  questionable,  only  when 
brought  to  the  touchstone  of  those  liberal  principles, 
which,  from  the  earliest  time,  the  American  sfovern- 
ment  has  openly,  avowed  and  sought  to  advance, 
and  which  other  European  nations  have  accepted, 
with  regard  to  the  sea.  Indeed,  Great  Britain  can- 
not complain,  except  by  now  adopting  those  identi- 
cal principles,  and  should  we  undertake  to  vindicate 
the  act,  it  can  only  be  done  by  their  repudiation." 
And  again: 

"  A  question  of  international  law  should  not  be 
presented  on  any  mere  argitmentnm  ad  Tiominem. 
It  would  be  of  little  value  to  show  that  Captain 
Wilkes  was  sustained  by  British  authority,  if  he 
were  condemned  by  international  law,  as  interpret- 
ed by  his  own  country.  It  belongs  to  us,  now — 
nay,  let  it  be  our  pride,  at  any  cost  of  individual 
prepossessions  or  transitory  prejudices,  to  uphold 
that  law  in  all  its  force,  as  it  was  often  declared  by 
the  best  men  in  our  history,  and  illustrated  by  na- 
tional acts ;  and  let  us  seize  the  pi'esent  occasion  to 
consecrate  its  positive  and  unequivocal  recognition. 

"  In  exchange  for  the  prisoners  set  free,  we  receive 
from  Great  Britain  a  practical  assent,  too  long  de- 
ferred, to  a  principle  early  propounded  by  our  coun- 
tr}^,  and  standing  forth  on  every  page  of  her  history. 

"The  same  voice  which  asks  for  their  liberation,  re- 
nounces, in  the  same  breath,  an  odious  pretension,  for 
whole  generations  the  scourge  of  peaceful  coramei'ce." 


THE  CASE  OF  THE  TRENT.  367 

The  Senator  tlien  proceeds  to  consider  tlie  several 
grounds  upon  wlaicli  the  lawfulness  of  the  removal 
of  the  rebel  emissaries,  on  the  capture  of  the  vessel 
which  was  carrying  them,  might  be  predicated,  and 
shows  that — 

1.  By  the  public  law,  as  uniformly  asserted  and 
maintained  by  the  United  States,  the  seizure  and 
removal  of  the  persons  of  the  rebels,  without  taking 
the  ship  into  port,  was  unlawiui— inasmuch  as  a 
naval  officer  is  not  entitled  to  substitute  liimself  for 
a  judicial  tribunal. 

2.  By  the  puljlic  law,  as  asserted  and  maintained 
by  the  United  States,  the  neutral  vessel  was  not 
liable  to  capture,  and  could  not  have  been  lawfully 
condemned,  if  taken  into  port,  for  the  offence  of 
carrying  the  rebel  emissaries,  inasmuch  as  neutral 
ships  are  free  to  eatery  all  persons^  not  apparently  in 
the  military  or  namal  service  of  the  enemy. 

3.  By  the  public  law,  as  asserted  and  maintained 
by  the  United  States,  the  neutral  vessel  was  not 
liable  to  seizure  for  carrying  hostile  dispatches,  in- 
asmuch as  such  dispatches  are  not  contraband  of 
war.     And, 

4.  By  the  j)ublic  law  as  asserted  and  maintained 
by  the  United  States,  the  Trent  was  not  liable  to 
arrest,  as  the  carrier  of  hostile  dispatches,  inasmucli 
as  she  was  a  neutral  vessel,  sailing,  at  the  time,  be- 
tween neutral  ports. 

And,  first,  as  to  the  unlawfulness  of  the  seizure 
and  removal  of  the  rebel  emissaries,  without  taking 
the  ship  into  port — after  reviewing  the  early  and 
persistent  pretension  and  practice  of  Great  Britain 
in  opposition  to  the  principle  asserted  and  urged 
by  the  United  States,  the  senator  says: 


353  THE  CASE  or  THE  TRENT. 

"  Pi'otest,  argument,  negotiation,  correspondence, 
and  war  itself— unhappily  tlie  last  resort  of  repub- 
lics as  of  kings — were  all  employed  in  vain  by  tlie 
United  States  to  procure  a  renunciation  of  this  in- 
tolerable pretension."  "  But,"  lie  proceeds,  "  I  do 
not  content  myself  witli  asserting  the  persistent 
opposition  of  the  American  government.  It  be- 
longs to  the  argument,  that  I  should  exhibit  this 
opposition  and  the  precise  ground  on  which  it  was 
placed — being  identical  with  that  now  adopted  by 
Great  Britain — and  here  the  testimony  is  complete." 

He  then  cites  the  authentic  records  of  his  govern- 
ment : 

During  the  administration  of  Washington,  from 
the  letters  of  Mr.  Jefferson,  his  secretary  of  state, 
to  Mr.  Pinckney,  the  American  Minister  at  London, 
of  the  11th  of  June  and  the  12th  of  October,  1792. 

During  the  administration  of  John  Adams,  from 
the  letter  of  Mr.  Pinckney,  his  secretary  of  state,  to 
Eufus  Kino^,  the  American  Minister  at  London,  of 
the  8th  of  June,  1796 ;  and  during  the  same  admin- 
istration, from  the  letter  of  John  Marshal,  tl^n 
secretary  of  state,  afterward  the  venerated  Chief- 
Justice,  to  Kufus  King,  of  the  20th  of  September, 
1800. 

During  the  administration  of  Jefferson,  froni  the 
productions  of  Mr.  Madison,  his  secretary  of  state, 
for  the  eight  years  of  his  Presidency,  who,  in  his 
instructions  to  Mr.  Monroe,  then  the  American  Min- 
ister at  London,  on  the  5th  of  January,  1804,  ex- 
posed the  tyranny  of  the  British  pi'etension,  in  these 
emphatic  and  memorable  terms  : 

"  Taking  reason  and  justice  for  the  tests  of  this 
practice,   it   is   pecidiarly   indefensible^   because    it 


THE    CASE    OF    THE    TREI^^T,  359 

deprives  the  dearest  rights  of  j^ersons  of  a  regular 
trial,  to  which  the  most  inconsiderable  article  of 
property  captured  on  the  high  seas  is  entitled,  and 
leaves  the  destiny  to  the  will  of  an  officer,  some- 
times cruel,  often  ignorant,  and  generally  interested, 
by  want  of  mariners,  in  his  own  decisions. 

"  Whenever  property  found  in  a  neutral  vessel  is 
supposed  to  be  lial;)le,  on  any  ground,  to  capture 
and  condemnation,  the  rule  in  all  cases  is,  that  the 
question  shall  not  be  decided  by  the  captor,  but  be 
carried  before  a  les-al  tribunal,  wh'ere  a  reo-ular  trial 
may  be  had,  and  where  the  captor  himself  is  liable 
to  damages  for  an  al)use  of  his  power.  Can  it 
be  reasonable  then,  or  just,  that  a  belligerent  com- 
mander, who  is  thus  restricted,  and  thus  responsi- 
ble, in  a  case  of  mere  property  of  a  trivial  amount, 
should  be  permitted,  without  recnirring  to  any  tri- 
bunal whatever,  to  examine  the  crew  of  a  neutral 
vessel,  to  decide  the  important  question  of  their  respec- 
tive 'allegiances,  and  to  carry  that  decision  into 
execution  by  forcing  every  individual  he  may  choose, 
into  a  service  abhorrent  to  his  feelings,  cutting  him 
off  from  his  most  tender  connections,  exposing  his 
mind  and  his  person  to  the  most  humiliating  disci- 
pline, and  his  life  itself  to  the  greatest  danger? 
Reason,  justice,  and  humanity  unite  in  protesting 
against  so  extravagant  a  proceeding." 

From  year  to  year,  from  1804  to  181 '2,  negotia- 
tions were  carried  on  between  the  representatives 
of  the  United  States  government  and  British  com- " 
missioners,  for  the  purpose  of  procuring,  a  renun- 
ciation by  Great  Britain  of  this  intolerable  preten- 
sion, by  which,  in  the  language  of  John  Adams,  in 
a   pamphlet   issued    l)y  him    upon    the    absorbing 

24 


370  THE    CASE    OF    THE    TRENT. 

theme,  in  January,  1809,  "naval  lieutenants  te- 
came  judges,  midsliipmen,  became  clerks,  and  boat- 
swains, sheriffs  or  marshals." 

"At  last," resumes  the  senator,  "all  redress  through 
negotiation  was  found  to  be  impossible ;  and  this 
pretension,  aggravated  into  multitudinous  tyranny, 
was  openly  announced  to  be  one  of  the  principal  j 
reasons  for  the  declaration  of  war  against  Great 
Britain  in  1812." 

The  language  of  President  Madison,  in  his  mes- 
sage to  Congress  of  June  1st,  in  that  year,  in  wdiich 
he  designates  the  offensive  character  of  the  British 
pretension,  is  especially  noteworthy,  because  singu- 
larly coincident  with  that  used  by  the  professional 
advisers  of  the  British  crown,  in  their  exposition  of 
the  unlawfulness  of  the  act  of  the  commander  of 
the  San  Jacinto. 

President  Madison  says :  "  Could  the  seizure  of 
British  subjects,  in  such  cases,  be  regarded  as  within 
the  exercise  of  a  belligerent  right,  the  acknowledged 
laws  of  war,  which  forbid  an  article  of  captui*ed 
property  to  be  adjudged,  without  a  regular  investi- 
gation before  a  competent  tribunal,  wovld  imperi- 
ously demmid  the  fairest  trial,  when  the  sacred 
rights  of  persons  were  at  issue.  In  place  of  such  a 
trial  these  rights  are  subjected  to  the  will  of  every 
petty  commcmdeTr 

The  British  writers  say :  "  It  is  not  to  the  right 
of  searc'h  that  we  object,  htt  to  the  following  seizure 
without  process  of  law.  What  we  deny  is,  the  right 
of  a  naval  officer  to  stand  in  place  of  a  prize  court, 
and  juljudicate,  sword  in  hand,  with  a  sic  volo  sic 
jubeo,  on  the  very  deck  which  is  a  part  of  our  ter- 
ritoiy." 


THE  CASE  OF  THE  TRENT.  371 

Witli  what  heartfelt  satisfaction  would  such  lan- 
guage, proceeding  from  the  law  officers  of  the  Brit- 
ish crown,  have  been  hailed  by  the  American 
statesmen,  and  how  it  would  have  cheered  the 
hearts  of  the  American  people,  of  1812. 

The  conclusion  of  the  war,  by  the  treaty  of 
Ghent,  brought  with  it  neither  renunciation  nor 
modification  of  the  British  claim. 

To  effect  this,  other  negotiations  were  set  on  foot, 
during  the  administration  of  President  Monroe,  in 
1818  and  in  1823,  and  in  1827,  during  the  adminis- 
tration of  John  Quincy  Adams.  They  were  alike 
futile  as  those  undertaken  before  the  war.  And  at 
length,  in  1842,  in  the  negotiation  of  the  treaty  of 
Washington,  Mr.  Webster,  then  the  American  Sec- 
retary of  state,  announced  his  abandonment  of  all 
idea  of  further  negotiation,  having  in  view  the  re- 
linquishment by  Great  Britain  of  her  asserted  right, 
and  contented  himself  with  a  deliberate  declaration 
of  the  principle  irrevocably  adopted  by  the  govern- 
ment of  the  United  States. 

"  Such,"  continues  the  senator,  "  is  an  authentic 
history  of  the  British  pretension,  and  of  the  man- 
ner in  which  it  has  been  met  by  our  government. 
And  now,  the  special  argument,  formerly  directed 
by  us  against  this  pretension,  is  directed  by  Great 
Bi'itain  against  the  pretension  of  Captain  Wilkes, 
to  take  two  rebel  emissaries  from  a  British  packet 
ship. 

"  If  Captain  Wilkes  is  right  in  this  pretension, 
then,  throughout  all  these  international  debates,  ex- 
tending over  at  least  two  generations,  we  have  been 
wrong." 

Passing  to  the  second  position,  of  the  unlawful- 


372  •  THE  CASE  OF  THE  TRENT. 

ness  of  a  capture  of  the  neutral  vessel,  because  em- 
ployed in  carrying  the  rebel  emissaries,  inasmuch 
as  these  emissaries  were  not  apparently  in  the  mili- 
tary gv  naval  service  oftlieenetny^  the  senator  shows 
that,  upon  British  authority,  such  a  doctrine  could 
not  be  maintamed.  "  But,"  he  adds,  "  the  original 
American  policy  is  unchangeable,  and  the  American 
precedents  which  illustrate  it,  are  solemn  treaties. 

"The  words  of  Vattel,  and  the  judgments  of  Sir 
"William  Scott,  were  well  known  to  the  statesmen 
of  the  United  States,  and  yet,  in  the  face  of  these 
authorities,  the  American  government,  at  an  early 
day,  deliberately  adopted  a  contrary  policy,  to 
which,  for  half  a  century,  it  has  steadily  adhered. 
It  was  plainly  declared,  that  only  soldiei's  or  officers 
could  be  stopped,  thus  positively  excluding  the  idea 
of  stopping  ambassadors,  or  emissaries  of  any  kind, 
not  in  the  military  or  naval  service." 

To  this  effect  is  cited  the  language  of  Mr.  Madi- 
son, in  his  dispatch  to  Mr.  Monroe,  at  London,  on 
the  5th  of  January,  1 804.  "  The  article  renounces 
the  claim  to  take  from  the  vessel  of  the  neutral 
party,  on  the  high  seas,  any  person  whatevei,  not 
in  the  military  service  of  an  enemy  '  an  exception 
which  we  admit  to  come  within  the  law  of  nations, 
on  the  subject  of  contraband  of  war.  With  this  ex- 
ception^ we  consider  a  neutral  flag  on  the  high  seas, 
as  a  safeguard  to  those  sailing  under  it." 

To  this  effect  was  the  language  of  the  stipulation, 
the  adoption  of  which  Mr.  Monroe  was  instructed 
to  propose,  as  portion  of  the  convention  between 
the  United  States  and  Great  Britain. 

"  No  person  whatever  shall,  upon  the  high  seas, 
and  without  the  jurisdiction  of  either  party,  be  de- 


THE   CASE    OF   THE   TRENT.  373 

mauded  or  taken  out  of  any  ship  or  vessel  belong- 
ing to  citizens  or  subjects  of  one  of  the  parties,  by 
the  public  or  private  armed  ships  belonging  to  or 
in  the  service  of  the  other,  unless  such  person  he,  at 
the  time,  in  the  military  service  of  an  enemy  of  such 
other  party P 

This  proposed  stipulation  was  vainly  urged  by 
the  united  earnestness  of  Mr.  Monroe  and  Mr. 
Pinckney,  who  were  joined  in  the  mission  to  London. 

On  the  9th  of  April,  1805,  Mr.  Madison,  in  a 
communication  to  Mr.  Merry,  the  then  British  Min- 
ister at  Washington,  declares  that — 

"  The  United  States  cannot  accede  to  the  claim 
of  any  nation,  to  take  from  their  vessels  on  the  high 
seas,  any  description  of  persons,  except  soldiers  in 
the  actual  service  of  the  enemy."  And  on  the  12th 
of  the  same  month,  the  auta2:onism  of  Great  Britain 
to  the  United  States  upon  this  principle  was  un- 
equivocally asserted,  in  the  reply  of  the  British 
Minister,  in  which,  on  behalf  of  his  government, 
he  positively  repudiated  the  doctrine. 

Further,  to  show  the  uniform  adherence  of  the 
United  States  to  this  liberal  principle,  and  her  ear- 
nest advocacy  of  its  adoption  by  other  nations,  the 
learned  senator  invokes  the  treaty  history  of  his 
country,  and  points  out  its  harmonious  accordance. 

The  treaty  between  the  United  States  and  France, 
negotiated  by  Benjamin  Franklin,  contains  the  fol- 
lowing stipulation : 

"And  it  is  hereby  stipulated  that  free  ships  shall 
also  give  a  freedom  to  goods,  and  that  every  thing 
,  shall  be  deemed  to  be  free  and  exempt,  which  shall 
be  found  on  board  the  ships  belonging  to  the  sub- 
jects of  either  of  the  confederates,  although  the 


374  THE  CASE  OF  THE  TEENT. 

whole  lading,  or  any  part  thereof,  sliould  appertain 
to  the  enemies  of  either,  contraband  goods  being 
always  excepted.  It  is  also  agreed,  in  like  manner, 
that  the  same  liberty  be  extended  to  persons  who 
are  on  board  a  free  ship,  with  this  effect — that  al- 
ihougli  they  he  enemies  to  hoth  or  either  party ^  tliey 
are  not  to  he  taken  out  of  that  free  sliip,  unless  they 
are  soldiers,  in  the  actual  service  of  the  enemy P 

Substantially  the  same  provision  was  embraced 
in  each  succeeding  treaty  entered  into  between  the 
United  States  and  the  other  maritime  nations  of 
either  hemisphere,  with  the  single  exception  of 
Great  Britain,  whose  assent  to  the  principle  was 
always  and  pertinaciously  refused. 

It  will  be  found  in  the  treaty  concluded  by  the 
United  States  with  the  Netherlands,  in  1782 — with 
Sweden,  in  the  same  year — with  Prussia,  in  1785 — 
with  Spain,  in  1795 — with  France,  in  1800 — -with 
Columl^a,  in  1824 — with  Central  America,  in  1825 
—with  Brazil,  in  1828— with  Mexico,  in  1831- with 
Chili,  in  1832 — with  Venezuela,  in  1836— with  Peru 
and  Bolivia,  in  the  same  year — with  Ecuador,  in 
1839— with  New  Grenada,  in  1846— with  Guate- 
mala, in  1849 — with  San  Salvador,  in  1850 — and 
with  Peru,  in  1851.^ 

By  this  unbroken  chain  of  evidence,  in  the  solemn 
form  of  treaty  stipulation,  the  princi2:)le  is  asserted 
as  the  fixed  and  irrevocaT)le  policy  of  the  ^^nited 
States  government,  by  Avhich  neutral  vessels  are  ex- 
empt from  capture  by  a  belligerent  cruiser,  for  car- 
rying any  other  persons  than  such  as  are  actually 

^Vidc  8th,  9th,  and  10th  volumes  of  the  United  States  Statutes 
at  Large. 


THE  CASE  OF  THE  TRENT.  375 

in  tlie  military  or  naval  service  of  tlie  enemy,  and 
tliat  no  other  than  such  persons  can  lawfully  be 
removed  from  on  board  such  neutral  vessel. 

That  such,  too,  is  the  principle  adopted  by  the 
French  government,  is  declared  by  her  minister  for 
foreign  affairs,  in  a  diplomatic  note,  addressed  to 
the  American  Secretary  of  state,  upon  the  subject 
of  this  arrest,  in  which  he  "  earnestly  insists  that 
the  rebel  emissaries,  not  being  military  persons  actu- 
ally in  the  service  of  the  enemy,  were  not  subject 
to  seizure  on  board  a  neutral  ship." 

It  thus  apjDcars,  that  Great  Britain  stands  among 
the  nations  of  the  earth,  in  jealous  conservation  of 
her  assumed  rights  as  dictator  of  the  sea,  the  sole 
repudiator  of  this  princij)le,  upon  wliicli  alone  her 
demand  could  be  sustained  for  the  r(:storation  to 
her  custody  of  the  rebel  emissaries,  because  removed 
from  her  merchant  ship,  in  "  violation  of  interna- 
tional law ! " 

The  senator  then  proceeds  to  the  consideration  of 
the  third  position,  that — 

By  the  public  law,  as  asserted  and  maintained 
by  the  United  States,  the  neutral  vessel  was  not 
liable  to  seizure  for  carrying  hostile  dispatches, 
inasmuch  as  such  dispatches  are  not  contraband  of 
war. 

That  the  Trent  was  the  carrier  of  such  dispatches, 
no  one  could  doubt.  This  necessarily  resulted  from 
the  character  of  the  service  the  rebel  emissaries 
were  on  their  way  to  perform;  and,  indeed,  the 
chief  among  the  rebels,  who  assumcl  to  appoint 
them  to  this  service,  has  since  declared  that  they 
were  furnished  with  his  appointment  and  commis- 
sion. 


376  THE  CASE  OF  THE  TRENT. 

That  the  vessel  was  subject  to  capture  for  this 
cause,  by  the  well-settled  law  of  Great  Britain,  as 
laid  down  in  numerous  cases  in  her  courts  of  Admi- 
ralty, and  in  the  decisions  of  the  Lords,  in  which 
hostile  dispatches  are  declared  to  be  included  in 
the  list  of  contraband  articles,  we  have  already 
seen.^ 

"  But,"  says  the  senator,  "  however  binding  and 
peremptory  these  authorities  may  be  in  Great  Brit- 
ain, they  cannot  be  accepted  to  reverse  the  standing 
policy  of  the  United  States,  which  here,  again, 
leaves  no  room  for  doubt." 

In  the  treaty  concluded  by  the  United  States 
with  France,  in  1778,  there  is  an  enumeration  of 
the  articles  to  be  considered  as  contraband,  and  the 
article  "dispatches"  does  not  appear  in  this  enu- 
meration ; .  and  the  subsequent  i)ro vision  of  limita- 
tion, operates  as  an  exclusion  of  dispatches,  by 
declaring  that  "Free  goods,  are  all  other  mer- 
chandise and  things  which  are  not  comprehended 
and  particularly  mentioned  in  the  foregoing  enu- 
meration of  contraband  goods." 

The  subsequent  treaties  concluded  by  the  United 
States  with  other  nations,  containing  the  same  enu- 
meration  and  the  like  exclusion,  long  after  the. Brit- 
ish decisions  had  become  well  known,  by  which 
hostile  dispatches  were  not  only  included  in  the 
list  of  contraband  articles,  but  were  declared  to  be 
of  a  character  so  noxious,  as  to  subject  both  ship 
and  cargo  to  confiscation,  may  properly  be  regarded 
as  a  practical  repudiation  of  the  British  doctrine. 

If,  then,   the   capture    of    the    neutral    steamer 

1  Vide  ante,  p.  — 


THE  CASE  OF  THE  TRENT.  377 

Trent  because  she  was  tlie  carrier  of  hostile  dis- 
patches, would  have  been  in  "  violation  of  interna- 
tional law,"  as  it  is  conceded  it  would  have  l^een, 
as  that  law  is  established  by  the  policy  of  the  na- 
tion of  the  captor,  Great  Britain,  the  complaining 
power,  is  the  only  nation  on  earth  which  is  pre- 
cluded fi'om  making  such  complaint,  Ijecause  the 
only  nation  by  whose  tri1)unals  the  validity  of  a 
capture  for  such  cause  is  asserted  and  maintained. 

Passing  to  the  fourth  and  last  position,  that,  by 
the  public  law,  as  asserted  and  maintained  by  the_ 
United  States,  the  Trent  was  not  liable  to  aiTest, 
as  the  carrier  of  hostile  dispatches,  even  upon  the 
assumption  that  they  were  contraband,  because  she 
was  a  neutral  vessel,  sailing  between  neutral  ports, 
the  senator  clearly  shows,  that  the  principle  in  the 
law  of  contraband,  adopted  and  adhered  to  by  the 
United  States,  as  set  forth  in  her  treaties  with  other 
nations  than  Great  Britain,  includes  a  rigid  limita- 
tion of  its  application  to  trading  with  the  enemy. 

It  is  uniformly  declared  that  the  articles  enumer- 
ated as  contraband,  are  only  su>)ject  to  capture 
and  confiscation,  "  when  they  are  carried^  or  attempt- 
ed to  he  carried^  to  an  enemy ^  Of  course  not,  when 
carried  between  neutral  ports,  and  not  destined  for 
the  enemy. 

But  although,  by  the  law  of  nations,  as  fixed  in 
the  policy  adopted  by  the  United  States  govern- 
ment, the  neutral  termini  of  the  voyage  of  the  Trent 
freed  her  from  liability  to  capture  as  the  carrier  of 
contraband  articles  of  any  description,  it  clothed  . 
her  with  no  such  immunity  under  the  well-settled 
law  of  Great  Britain. 

The  great  oracle  of  British  prize  law.  Sir  Wil- 


378  THE    CASE    OF   THE   TEEIS^T. 

liani  Scott,  in  a  "well-considered  judgment,"  de- 
clares, tliat  dispatches  taken  on  Ijoard  a  neutral 
sliip,  sailing  from  a  neutral  country,  and  bound  for 
another  neutral  country,  are  contraband ;  but  that, 
where  there  was  reason  to  believe  the  master  is-no- 
rant  of  their  character,  "  it  is  not  a  case  in  Avhich 
the  property  is  to  be  confiscated,  although  in  tliis, 
as  in  every  other  instance  in  ivldch  the  enemy'^s  dis- 
patches are  found  on  hoard  a  vessel,  he  has  justly 
subjected  himself  to  all  the  inconveniences  of  seizure 
^nd  detention,  and  to  all  the  expenses  of  those  judi- 
cial inquiries  which  they  have  occasioned." 

And  thus  the  senator  concludes  his  demonstra- 
tion, that  upon  every  ground  of  comjilaint,  either 
of  the  capture  of  the  Trent,  or  the  removal  of  the 
rebel  emissaries,  upon  which  a  violation  of  interna- 
tional law  could  be  predicated,  such  capture  or  re- 
moval, was  unjustifiable  by  American  authorit}-  or 
American  precedent,  but  upon  each  point  was  in 
entire  accordance  with  the  authority,  the  prece- 
dents, and  the  persistent  practice  of  Great  Britain, 
for  o;enerations. 

Having  to  deal  with  a  British  ship,  the  Ameri- 
can commander,  no  doubt,  thought  he  could  not 
err  in  consulting  and  following  British  authority. 
"But,"  says  the  senator,  "he  was  mistaken.  ^ There 
was  a  better  example.  It  was  the  constant,  uni- 
form, unhesitating  practice  of  his  own  country  on 
the  ocean,  conceding  always  the  greatest  immunity 
to  neutral  ships,  unless  sailing  to  blockaded  ports — 
refusing  to  consider  disj^atches  as  contraband  of 
war — I'efusing  to  consider  persons,  other  than  sol- 
diers or  officers,  as  contraband  of  war — and  protest- 
ing  always   against   an    adjudication   of    personal 


THE  CASE  OF  THE  TEENT.  379 

riglits  by  the  summary  judgment  of  a  quarter-deck. 
Had  these  well-attested  precedents  been  in  his 
mind,  the  gallant  captain  would  not,  for  a  moment^ 
have  been  seduced  from  his  allegiance  to  those 
principles  which  constitute  a  part  of  our  country's 
glory." 

This  review  of  one  of  the  most  interesting  and 
memorable  cases  in  the  history  of  international 
law,  cannot  be  more  fitly  closed  than  by  quoting 
the  language  of  the  distinguished  Senator  from 
Massachusetts  (whose  learning  and  research  has 
been  so  largely  availed  of  in  this  recital),  in  the 
eloquent  sentences  with  which  he  closes  his  mas- 
terly oration. 

"  Let  the  rebels  go.  Two  wicked  men,  ungrate- 
ful to  their  country,  are  let  loose,  with  the  brand 
of  Cain  upon  their  foreheads.  Prison  doors  are 
open,  but  principles  are  estaljlished  which  will 
help  to  free  other  men,  and  to  open  the  gates  of  . 
the  sea.  Never  before,  in  her  active  history,  has 
Great  Britain  ranged  herself  on  this  side. 

"Such  an  event  is  an  epoch.  Novus  soeculoriim  nas- 
citur  ordo.  To  the  liberties  of  the  sea  this  power 
is  now  committed.  To  a  certain  extent,  this  cause 
is  now  under  her  tutelary  care.  If  the  immunities 
of  passengers,  not  in  the  military  or  naval  service 
as  well  as  sailors,  are  not  directly  recognized,  they 
are  at  least  implied.  If  neutral  rights  are  not 
ostentatiously  proclaimed,  the}'  are  at  least  in- 
voked ;  while  the  whole  pretension  of  impressment, 
so  long  the  pest  of  neutral  commerce,  and  opera- 
ting only  through  the  lawless  adjudication  of  a 
quarter-deck,  is  made  absolutely  impossible.  Thus 
is  the  freedom  of  the  sea  enlarged,  in  the  name  of 


380  THE  CASE  OF  THE  TRENT. 

peaceful  neutral  riglits ;  not  only  by  limiting  the 
number  of  persons  who  are  exposed  to  the  penal- 
ties of  war,  but  by  driving  from  it  the  most  offen- 
sive pretension  that  ever  stalked  upon  its  waves. 
To  such  conclusions  Great  Britain  is  irrevocably 
pledged.  Nor  treaty  nor  bond  was  needed.  It  is 
sufficient  that  her  late  appeal  can  be  vindicated 
only  by  a  renunciation  of  early,  long-continued 
tyranny.  Let  her  bear  the  rebels  back.  The  con- 
sideration is  ample ;  for  the  sea  became  free  as  this 
altered  power  went  forth  upon  it,  steering  west- 
ward with  the  sun,  on  an  errand  of  liberation. 

"  In  this  surrender,  if  such  it  may  be  called,  our 
government  does  not  even  '  stoop  to  conquer.'  It 
simply  lifts  itself  to  the  height  of  its  own  original 
principles.  The  early  efforts  of  the  best  negotia- 
tors— the  patriot  trials  of  its  soldiers  in  an  unequal 
war,  have  at  length  prevailed,  and  Great  Britain, 
.  usually  so  haughty,  invites  us  to  practise  upon 
those  principles  which  she  has  so  strenuously  op- 
posed. 

"There  are  victories  of  force.  Here  is  a  victory 
of  truth.  If  Great  Britain  has  gained  the  custody 
of  two  rebels,  the  United  States  have  secured  the 
triumph  of  their  principles. 

"  Henceforth,  the  statutes  of  the  sea,  refined  and 
elevated,  will  be  the  agents  of  peace,  instead  of  the 
agents  of  war.  Ships  and  cargoes  will  pass  un- 
challenged from  shore  to  shore  ;  and  those  terrible 
belligerent  rights,  under  which  the  commerce  of 
the  world  has  so  long  suffered,  will  cease  from 
troubling.  In  this  work  our  country  began  early. 
It  had  hardh-  proclaimed  its  own  independence,  be- 
fore it  sought  to  secure  a  similar  independence  of 


THE   CASE    OF   THE   TRENT.  381 

tlie  sea.  It  had  hardly  made  a  constitution  for  its 
own  government,  before  it  sought  to  establish  a 
constitution  similar  in  spirit,  for  the  government  of 
the  sea.  If  it  did  not  prevail  at  once,  it  was  because 
it  could  not  overcome  the  unyielding  opposition  of 
Great  Britain.  And  now  the  time  is  come  when 
the  champion  of  belligerent  rights  has  changed  his 
hand  and  checked  his  pride.  Welcome  to  this 
new-found  alliance.  Welcome  to  this  peaceful  trans- 
figuration. Meanwhile,  throughout  all  present  ex- 
citement, amidst  all  present  trials,  beneath  all 
threatening  clouds,  it  only  remains  for  us  to  uphold 
the  perpetual  policy  of  the  republic,  and  to  stand 
fast  on  the  ancient  ways." 

When  we  consider  the  past  policy  and  present 
condition  of  the  nation  by  whom  the  extraordinary 
demand  in  this  case  of  TJie  Trent  was  made — in  con- 
nection with  the  past  policy  and  present  condition 
of  the  nation  to  whom  it  was  made — it  cannot  but 
be  the  conviction  of  every  honest  mind,  that  it  was 
a  demand — not  fit  to  be  made.  But  what  patriot 
of  America,  what  philanthropist  anywhere,  will  re- 
gret, or  with  bitterness  remember,  the  temporary 
mortification  of  the  concession  to  such  a  demand,  if 
that  concession  shall  carry  with  it,  for  the  blessing 
of  future  ages,  the  happy  result  thus  eloquently 
foreshadwed  by  the  distinguished  Senator,  who 
spoke  so  nobly  in  its  defence ;  if  the  liberal  and  en- 
lightened sentiments  and  principles,  springing  from 
the  very  nature  of  the  government,  and  the  spirit 
of  the  institutions  of  the  United  States — and  which 
have  distinguished  her  policy  from  the  beginning — 
shall  hereafter  become  vital  among  nations ;  if 
henceforth,  Christianity  and  civilization  live  and  la- 


382  THE    CARE    OF   THE   TEENT., 

bor  togetlier,  in  tlie  construction  of  tlie  great  fabric 
of  puljlic  law,  by  whicli  alone  can  1  )e  secured  the 
peace  and  happiness  of  nations ;  if  it  shall  hasten 
the  dawning  of  that  auspicious  day,  when  shall 
arise  the  glorious  spectacle  of  the  triumph  of  reason 
and  princij)le,  over  power  and  interest — 

"  When  Sovereign  law,  the  world's  collected  will, 
O'er  thrones  and  globes  elate, 
Sits  empress — crowning  good,  repressing  ill : 
Smit  by  her  sacred  frown. 
The  fiend  discretion,  like  a  vapor,  sinks, 
And  e'en  the  all-dazzling  crown 
Hides  his  faint  rays,  and  at  her  bidding,  shrinks." 


PEIZE   JUEISDICTION   OF   COURTS    OF   ADMIEALTY.  383 


CHAPTER  VI. 

Of  the   Peize   JuEiSDiCTioisr    of  Couets   of   Ad- 
miralty,  AND    OF    THE    PeACTICE    AND    PeOCEED- 

INGS  OF  Peize  Couets. 

Judicial  tribunals,  constituted  for  tlie  purpose  P"ze  jurisdic- 

.  . .  „  • ,  •  7  t'O"^  exclusive- 

01   passing   upon   questions   oi   maritime   capture,  ly  vested  in 
tliougli  different  in  different  countries,  are   in  all  mSty° 
nations  distinct  from  tlie  ordinary  municipal  tri- 
bunals. 

They  are  commissioned  to  decide  in  accordance 
witli  tlie  law  of  nations  and  tlie  conventional  oblig-a- 
tions  of  treaties ;  and  therefore  in  the  proceedings 
adopted  for  their  administration  of  the  law,  and  in 
the  rules  of  evidence  by  which  they  are  guided, 
they  bear  no  analogy  to  the  ordinary  municipal  or 
common  law  tribunals. 

In  the   United   States   and   Great   Britain,  the  in  United 

-,       •  ••Tj,*  J?  '±'  1  •  I    States   and 

exclusive  jurisdiction  or  maritime  captures  is  vest- Great  Britain. 
ed    in    courts    of   admiralty,   which    in   the  exer- 
cise of  this  power  are  usually  denominated  prize 
courts. 

Courts  of  admiralty  were  originally  established 
in  England,  in  the  reign  of  Edward  III.,  and  their 
powers  were  limited  and  defined  by  Kichard  II., 
who  first  conferred  the  title  of  admiral  of  England 
on  a  subject,  by  patent  granted  to  the  Earl  of  Arun- 
del and  Surrey.  In  Grreat  Britain,  this  court  is  held 
by  the  lord  high  admiral,  or  by  his  deputy,  who  is 
called  judge  of  the  court  of  admiralty. 

In  the  United  States,  this  court  is  held  by  the 
several  judges  of  the  district  court  of  the  United 


384  PEIZE    JURISDICTION    OF   COUETS    OF   ADMIRALTY. 

States  in  tlieir  respective  districts,  pursaant  to  tlie 
powers  vested  in  tliem  by  tlie  constitution  and  laws 
of  Congress. 

In  prize  cases,  an  appeal  lies  in  England  from  tlie 
courts  of  admiralty  to  commissioners  of  appeal,  who 
are  composed  j)riucipally  of  the  privy  council,  com- 
missioned under  the  great  seal  for  that  purpose — 
and  in  the  United  States,  an  aj)peal  lies  from  the 
district  court  to  the  circuit  court  in  which  the  dis- 
trict is  included,  and  thence  to  the  Supreme  Court 
of  the  United  States. 
Jurisdiction         By  the  law  of  nations,  the  jurisdiction  of  mari- 
the  coum'of  time  captures  is  vested  in  the  courts  of  the  captor, 
the  captor.      ^^^  ^^j^g  excrcisc  of  sucli  jurisdiction  has  been  often 
made  the  subject  of  treaty  stij^ulation. 

In  1794,  in  contravention  to  the  established  law 
of  nations,  the  French  government  decreed  that 
French  consuls  and  vice-consuls  in  neutral  territory 
should  have  jurisdiction  in  cases  of  prize  brought 
into  ports  where  they  were  stationed. 

This  jurisdiction  was  not  allowed  by  the  court 
of  admiralty  in  England;  and  in  the  case  of  a 
British  prize  taken  into  Bergen,  and  sold  under  a 
decree  of  condemnation  by  the  French  consul  there, 
Lord  Stowell  said :  "  It  is,  for  the  first  time  in  the 
world,  that  in  the  year  1799  an  attempt  is  made  to 
impose  upon  the  coui't  a  sentence  of  a  tribunal  not 
existing  in  the  belligerent  country,  but  of  a  person 
pretending  to  be  authorized  within  the  dominions 
of  a  neutral  territory.  It  has  Ijeen  the  constant 
usage  that  the  tribunals  of  the  law  of  nations  in 
these  matters  shall  exercise  their  functions  within 
the  belligerent  country,  and  before  the  present  war 
no  sentence  of  this  kind  has  ever  been  produced,  m 


PRIZE    JURISDICTIOlSr    OF    COURTS    OF    ADMIRALTY.  385 


tlie  aunals  of  mankind,  and  it  is  produced  by  one 
nation  only  in  this  war."^ 

Altliough  by  tlie  law  of  nations,  decisions  in  cases  But  jurisdic- 

n  • ,'  j_  -I      '  ,      -I  ,    •  tion   may   be 

01  maritime  capture  made  m  neutral  countries  are  exercised 
wholly  without  validity,  yet  it  is  well  settled  b}-  jfjil'^f^^';';^' 
the  inveterate  practice  of  all  nations  (against  what  po't- 
Lord  Stowell  deemed  the  coiTect  principle),  that 
adjudications  may  be  made  in  the  court,  of  the  bel- 
ligerent captor,  while  the  prize  is  not  in  the  port  of 
his  own  country,  but  in  the  port  of  some  neutral 
state.^ 

A  decree  or  sentence  of  condemnation  by  a  prize  Decree  of  con- 

,/.  j_       j_  •       '    T    i'  •  '  n      demnation 

court  01  competent  jurisdiction,  is  now  universally  re(iuisite  to 
held  to  be  requisite  to  effect  a  complete  transfer  of  ^°"^sj-g^^  of 
maritime  prizes  from  the  original  owner  to  the  ca])-  property. 
tor,  "it  not  being  thought  fit,"  to  use  the  words  of 
Lord  Stowell,  "  that  property  jof  this  natui'e  should 
be  converted  without  the  sentence  of  a  competent 
court.^ 

This  doctrine  has  been  recognized  and  acted  upon 
by  the  Supreme  Court  of  the  United  States.^ 

But  although  a  condemnation  by  a  lawful  prize  Decree  final 

I    •      n      -\  ±     J.1       J.  jy         1}  ±^  ±  J    between  the 

court  IS  final,  as  to  the  transfer  ot  the  property,  yet,  parties,  but 
as  .between  the  respective  governments,  it  may  be  ^^l  ^if^^^^ 
reoj^ened,  and  reparation  demanded  where  injustice  ments. 
has  been  done.     This  was  done  by  the  mixed  com- 
mission appointed  pursuant  to  the  provisions  of  the 
treaty  of  1795  between  the  United  States  and  Great 
Britain ;  and  although  at  first  the  British  commis- 

'  The  Flad  Oym,  1  Rob.,  1  et  seq.,  141,  142,  and  notes ;  KJuber, 
Droit  des  Gens,  Part  II.,  Tit.  ii.,  §§  295,  296. 
^  The  Benrick  and  Maria,  4  Rob.,  43,  63. 
"  4  Rob.,  55.      *  Wheat.  Elements,  I.,  91. 
25 


386  PKIZE  COURTS JURISDICTION. 

sioners  objected  to  reconsider  cases  that  had  been 
decided  by  the  English  court  of  admiralty,  theii- 
objection  was  overruled,  and  indemnity  was  granted 
in  cases  in  which  there  had  been  a  final  condemna- 
tion. 

The  same  rule  was  adopted  between  Denmark 
and  the  United  States,  and  also  between  France 
and  the  United  States ;  in  each  instance  indemnity 
having"  been  awarded  to  United  States  claimants 
for  unjust  condemnations  of  American  property. 
B}"  this  salutary  doctrine  thus  fully  established,  an 
additional  o-uarantee  is  furnished  to  neutral  com- 
merce,  that  while  conducted  in  innocence  and  good 
faith,  it  shall  not  suffer  from  the  proceedings  of 
belligerents.^ 

Letter  of  Lord      Li  1^94,  Sir  William  Scott  and  Sir  John  Mcholl, 
Si>^ohir°     at:  the  solicitation  of^Mr.  Jay,  then  the  American 
John°j  ^^      minister  at   the   court  of    St.  James,    prepared  a 
statement  of  the  general  princi]3les  of  proceeding 
in  prize  causes  in  the  British  courts  of  admiralty, 
and  of  the  measures  proper  to  be  taken  when  a 
shi]3  and  cargo  are  brought  in  as  prize  within  their 
jurisdiction.     The  paper  is  a  valuable  one,  and, 
•  though  general  in  its  character,  "  as  far  as  it  goes," 
says  Judge  Story,  "  affords  a  satisfactory  and  lumi- 
nous view  of  the  subject."     It  will  be  found  entire 
in  the  appendix. 
Judge  Story's       A  much  more  elaborate  and  detailed  statement 

notes  mWhea-     n    .^  -,  .  ,  t  t   •       , 

ton's  Reports.  01  tile  suDJect  Subsequently  appeared  m  two  notes, 
originally  published  as  appendices  to  the  first  and 
second  volumes  of  Wheaton's  Admiralty  Reports. 

'  Manning's  Law  of  Nations,  384. 


PRIZE  COURTS JURISDICTION.  387 

These  valuable  notes  were  jjiepared  by  Judge 
Story,  and  present  a  prominent  instance  among  the 
many  whicli  distinguished  his  professional  life,  of 
the  unparalleled  devotion  of  that  eminent  judge  to 
the  cause  of  enlightened  jurisprudence,  as  well  as 
the  lavish  prodigality  mth  which  he  placed  at  the 
disposal  of  others  the  inexhaustible  stores  of  his 
own  learning.  It  was  his  design  that  these  notes, 
as  w^ell  as  others  in  the  same  reports,  should  be 
regarded  as  the  work  of  the  learned  reporter ;  for 
(as  he  modestly  wiites,  in  a  private  memorandum 
book  found  among  his  papers  after  his  decease)  "  I 
know  full  well  there  is  nothing  in  any  of  them 
which  he  could  not  have  prepared,  with  a  very 
little  exertion  of  his  own  diligence  and  learning." 
And  the  fact  of  his  authorship  of  certain  specified 
notes  is  only  preserved  in  this  private  memorandum, 
"  lest,"  as  he  wi^ites,  "  the  fact  should  transj^ire,  and 
it  should  be  supposed  that  he  (Mr.  Wheaton)  is 
under  obligation  to  me  for  notes  which  are  his 
own." 

Whoever  now  undertakes  to  prepare  a  summary 
of  the  practice  and  proceedings  in  admiralty,  in  the 
exercise  of  prize  jurisdiction,  must  be  largely  indebt- 
ed to  these  notes  of  Judge  Story.  Indeed,  it  would 
be  almost  presumptuous  to  expect  to  add  any  thing 
to  the  information  contained  in  them ;  and  the  hum- 
ble purpose  of  this  chapter  ^vill  be,  so  to  methodize 
and  arrange  that  information,  as  may,  perhaps,  pre- 
sent it  in  a  form  by  which  it  may  be  more  readily 
appreciated,  and  at  the  same  time  be  of  easier  ref- 
erence to  the  student  and  practitioner. 

As  preliminary  to  a  review  of  the  practice  and  ^J^®  j"ris<iic- 


388  PRIZE  COURTS JURISDICTION. 

Its  extent,      proceedings  of  prize  coui-ts,  it  is  essential  to  con- 

peSritier   sidcr  tlie  character,  extent,  and  peculiarity  of  tlie 

prize  jurisdiction  of  comets  of  admiralty. 

Tlie  prize  jurisdiction  of  a  court  of  admiralty,  is 
tliat  whicli  authorizes  it  to  take  cognizance  of  cap- 
tui-es  made  on  the  sea,  jwe  helli ;  of  captures  in  foi-- 
eign  ports  and  harbors ;  of  caj)tures  made  by  naval 
forces  on  land,  of  surrenders  to  naval  forces,  either 
solely  or  by  joint  operation  with  land  forces,  and 
this  without  reg;ird  to  the  character  of  the  proper- 
ty captured — whether  ships,  goods,  or  mere  cJioses 
in  action]  of  captures  made  in  rivers,  ports,  and 
harbors  of  the  enemy's  country ;  and  to  moneys  or 
property  paid  or  received  as  ransom  or  commuta- 
tion on  a  capitulation  to  naval  forces,  whether  alon  e 
or  jointly  with  land  forces,  for  the  pui'pose  of  de- 
termining whether  the  property  captured  or  sur- 
rendered, is  or  is  not  lawful  prize  of  war — to  the 
end,  that  if  determined  to  be  not  lawful  prize,  res- 
titution may  be  decreed,  unconditionally  or  upon 
terms;  and  if  it  be  determined  that  it  is  lawful 
prize,  condemnation  and  sale  may  be  decreed,  fol- 
lowed by  a  decree  of  distribution  of  its  j)roceeds, 
pursuant  to  the  law  which  regulates  such  distri- 
bution.^ 

As  necessary  incidents  to  the  prize  jui'Lsdictlon, 
thus  stated  in  the  most  general  terms,  courts  of 
admiralty  are  vested  with  exclusive  and  plenary 
powers  and  authority  over  all  subjects  connected 
with  captures,  being  considered  in  law  as  the  con- 

'  The  Tv)o  Friends,  1  Rob.,  271 ;  Lindo  vs.  Rodney,  Dong., 
613,  n. ;  W.  B.  vs.  Lattimer,  4  Dall.,  April  1 ;  Le  Caux  vs.  Eden, 
Doug.,  608  ;  The  ships  taken  at  Genoa,  4  Rob.,  338  ;  2  Wheaton, 
appendi.\. 


PRIZE  COURl^ — JURISDICTION.  389 

stitutional  guardians  of  the  interests  of  tlie  public 
in  all  matters  relating  to  prize. 

But  cognizance  of  captures  made  on  land,  by 
land  forces  only,  is  not  taken  in  admii^alty  by  vir- 
tue of  any  inherent  powers.  Whenever  it  exer- 
cises such  a  jui'isdiction,  it  is  by  vii-tue  of  special 
powers  derived  alkmdt} 

x\lthough  the  prize  jui'isdiction,  after  it  has  once 
attached  to  the  subject  matter,  may  be  lost,  by  a 
recapture,  escape  or  voluntary  discharge  f  yet  it  is 
well  settled  that  the  jui'isdiction  cannot  be  afPectecl 
l)y  any  change  in  the  local  situation  of  the  property 
after  capture,  but  wherever  that  property  may  be 
found,  or  the  proceeds  of  the  property,  the  coui't 
will  follow  it  with  its  process.^  Therefore,  if  the 
property  be  carried  to  a  foreign  port,  and  delivered 
upon  bail  by  the  captors,  the  jurisdiction  of  the 
prize  court  is  not  thereby  ousted,  but  will  be  ex- 
ercised by  adjudication  and  enforcement  of  the 
stipulation.*  So  too,  where  a  prize  is  lost  at  sea, 
the  court  has  power  to  proceed  to  adjudication, 
either  at  the  instance  of  the  captors  or  claimants.^ 
The  like  power  exists,  although  the  captui'ed  prop- 


'  Anthon  vs.  Fisher,  Doug.,  649,  n.  ;  Maissonniaire  vs.  Keat- 
ing, 2  Gall.,  325. 

-  The  Two  Friends,  1  Rob.,  271,  284 ;  The  Emulous,  1  Gall., 
563. 

^  Hudson  vs.  Guestier,  4  Cranch,  293. 

'  Home  vs.   Camden,  2  H.  BL,  533 ;  4  T.  R.  383 ;    Willis  vs- 

Commissioners  of  Prize,  5  East.,  22;  The  Noysomhed,  1  Ves.,  593; 

^The  Brig  Louis,  5  Rob.,  146;    The  Two  Friends,  1  Rob.,  271; 

The.  Eliza,  1  Acton,  336;  Smart  vs.  Wolf,  3  T.  R.,  223;   The 

i'omona,  1  Dod.,  25. 

'  The  PeacLcl;  4  Rob.,  195. 


390  PEIZE  COUETS JUEISDICTION. 

erty  may  be  lying  in  a  foreign  neutral  territory/ 
and  even  thougli  it  be  sold  or  has  passed  into  otlier 
hands,  the  court  may  proceed  to  adjudication  ;  but 
it  is  always,  in  such  cases,  in  the  discretion  of  the 
court  to  determine  if  they  will  exercise  theii'  juris- 
diction at  the  instance  and  in  favor  of  the  captors, 
and  this  they  will  not  do,  if  there  has  been  an 
illegal  or  unjustifiable  conversion — but  only  where 
it  has  resulted  from  necessity  or  reasonable  and  just 
cause.^ 

Jurisdiction  of  the  subject  matter  having  been 
once  acquired  by  a  prize  court,  its  authority  is 
plenary  over  all  the  incidents  necessary  to  its  effic- 
ient exercise.  It  will  therefore  follow  prize  proceeds 
into  the  hands  of  agents,  or  others,  who  by  any  title 
hold  them  for  the  captors,  and  will  enforce  j)ay- 
ment,  with  interest,  in  proper  cases,  by  decree.^ 

And  although  such  persons  have  given  no  stipu- 
lation, or  an  insufficient  stipulation,  on  receiving 
prize  j)roceeds,  it  will  enforce  a  decree  of  payment, 
for  it  may  always  proceed  in  rem^  and  is  not  lim- 
ited by  the  stipulation.*     In  such  cases  the  court 

'  Hudson  V?,.  Gxestier,  4  Crancli,  293;  The  ChristopTie,  2  Rob., 
209 ;  The  Henrick  and  Maria,  4  Rob.,  43  ;  The  Comet,  5  Rob., 
285  ;   The  Victoria,  Edwards,  97. 

*  The  Falcon,  6  Rob.,  194;  The  Pomona,  1  Dod.,  25;  D Eole, 
6  Rob.,  220;  Ladame  Cecile,  6  Rob.,  257;  The  Arabella  and 
Madrria,  2  Gall.,  368;  Code  des  prises,  Guchard  L,  p.  118. 

■■*  Smart  vs.  Wolf,  3  T.  R.,  313;  Home  vs.  Camden,  2  H.  Bl., 
533;  Jenninrjs  vs.  Carson,  4  Craiich,  1;  The  Two  Friends,  1 
Rob.,  273  ;  Willis  vs.  Commissioners  of  Prize,  5  East.,  22  ;  The 
Noysomhed,  7  Ves.,  593;  The  Princessa,  2  Rob.,  31  ;  The  Louis, 
6  Rob.,  146. 

•*  The  Poniina,  1  Dod.,  25  ;  The  Herkimer,  Stewart,  128  , 
2  Hall  Am.  Laio  Jour.,  133. 


PRIZE  COURTS JURISDICTIOISr.  391 

may  proceed,  and  without  tlie  application  of  parties, 
cs  officio^  as  guardian  of  tlie  public  interests. 

Even  after  final  sentence  is  pronounced,  the  pow- 
er of  the  coui't  does  not  cease  to  issue  process  foi- 
the  enforcement  of  all  rights,  so  long  as  any  thing 
remains  to  be  done  touching  the  subject  matter.^ 

Exclusive  jurisdiction  is  also  vested  in  prize 
courts,  to  determine  all  questions  between  captors 
and  joint-captors,  as  to  theii'  rights  to  the  proceeds 
of  prize,  and  such  determination  is  conclusive  be- 
tween the  parties.^ 

So  also  as  to  all  quefe*tions  of  freight,  damages, 
expenses,  and  costs  in  cases  of  capture.^ 

Though  a  mere  maritime  tort,  unconnected  with' 
capture,  may  be  cognizable  in  courts  of  common 
law,  yet  it  is  well  established  that  all  toi"ts  con- 
nected with  captures,  jure  helli  are  within  the  ex- 
clusive jurisdiction  of  prize  courts. 

In  the  exercise  of  this  jurisdiction,  prize  courts 
will  not  only  decree  restitution  and  damages  in 
cases  of  illegal  capture,  but  as  an  incident  to  the 
possession  of  the  principal  cause  will  allow  dam- 
ages for  personal  torts,  and  that  not  only  against 
the  wrong-doer,  but  against  the  owners  of  the 
privateer   offending,  upon  the   application  of  the 


'  Home  vs.  Camden,  2  H.  Bl.,  533,  and  cases  uhi  supra. 

*  Duckworth  vs.  Tucker,  2  Taunton,  7  ;  and  cases  nbi  sapra. 

^  Le  Caux  vs.  Eden,  Doug.,  594  ;  Lindo  vs.  Rodm  u,  Doug., 
61.">;  Smart  x?,.  Wolf,  3  T.  R.,  223;  The  Copenha-iev,  1  Rob., 
289  ;  The  St.  Juan  Baptista,  5  Rob.,  33  ;  Thr  Die  Fric  Darner, 
'6  Rob.,  357  ;  The  Betsy,  1  Rob.,  93  ;  Jennings  vs.  Carson,  4 
Cranch,  2;  Bingham  vs.  Cnbot,  3  Dall.,  19  ;  The  United  States 
vs.  Peters,  3  Dall,  121  ;  Talhot  V8.  Johnson,  3  Dall.,  133;  ? 
Brown  Civ.  and  Adm.  Law,  209. 


39 "2  PRIZE  COUR'l'S JURISDICTION. 

rale  of  respondeat  superior  ;  and  a  liberal  indemnity 
will  he  awarded  in  cases  where  it  is  sliown  that  tlie 
captured   crew  have  been   subjected  to  gross  ill- 

treaiment.^ 

The  jurisdiction  of  prize  courts  is  unquestionable 
to  decree  confiscation  as  a  penalty  for  falsity,  fraud 
or  misconduct,  as  well  of  citizens  as  of  neutrals. 
And  it  is  a  part  of  the  ancient  law  of  the  admiral- 
ty, independent  of  any  statute,  that  captors  may 
forfeit  their  rights  of  prize  by  their  own  miscon- 
duct ;  and  therefore  such  decree  of  forfeiture  may 
be  declared  against  them  (in  which  case  the  prop- 
erty goes  to  the  government),  where  they  have 
been  giiilty  of  gross  irregularity,  or  criminal  neg- 
lect, or  wanton  impropriety  and  fraud.  So  too, 
where  they  have,  without  necessity,  disposed  of  the 
prize  property,  before  condemnation ;  where  they 
have  rescued  the  property  from  the  custody  of  the 
marshall,  commissioner  of  prize,  or  other  custodian 
of  the  court ;  and  also  where  they  have  violated 
the  instructions  of  the  government  relative  to  bring- 
ing in  the  prize  crew,  and  generally  in  all  cases  of 
deviation  by  the  captors  from  the  established  and 
regular  course  of  proceedings,  the  prize  court  re- 
quires satisfactory  explanation  of  such  deviation, 
before  it  will  exercise  its  jurisdiction  beneficially  to 
the  captors.^ 

The  foregoing  general  outline  of  the  prize  juris- 

'  Del  Col.  vs.  Arnold,  3  Dall.,  330  ;  The  Anna  Maria,  2  Wheat., 
327  ;  Bynkerslioek,  Qu.  Jur.  Pub.  Lib.,  I.,  ch,  xix ;  Du  Ponceau's 
Trans.,  147  ;  The  St.  Juan  Baptista,  5  Rob.,  33  ;  The  Die  Frie 
Darner,  5  Rob.,  357;    The  Lively,  1  Gall.,  315. 

'  8  Cranch,  421  ;  The  Gcorqe,  2  Wheat,  278;  La  Rcine  des 
Anges,  Stewart,  9  ;    Tlte  Cossack,  Stewart,  513. 


DUTY    OF    CAPTOES.  :'.9S 

diction  of  admiralty  will  serve  to  elucidate  tlie 
rules  of  practice  and  proceedings  adopted  by  ]>rize 
courts  in  its  due  administration. 

And  first  in  order  for  Consideration,  are  tliose  ^^^'^^^"*,-*f  '^". 

first  duty   of 

rules  wliicli  relate  to  tlie  duties  of  captors,  aiter  captors  upon 
they  have  secured  possession  of  their  prize.     The  pession"of 
rules  applicable  to  the  evidence  upon  the  question  P'"'^^- 
whether  the  prize  is  or  not  a  lawful  prize,  will  be 
more  appropriately  considered  hereafter,  on  a  re- 
view of  the  proceedings  in  court. 

After  a  maritime  capture  is  complete,  the  posses-  Duty  of  oap- 
sion  01  the  captors  is,  m  law,  regarcled  as  a  oo?ia  Jiae  dse  proper 
possession,  and  they  are  not  responsible  for  any  loss  gafeci^to^dyof 
or  injuries  resulting  from  mere  accident  or  casualty,  the  prize. 
but  are  only  bound  for  fair  and  safe  custody,  and 
are  liable  for  any  loss  occasioned  by  their  neglect  or 
want  of  proper  care.     This  responsibility  attaches 
to  loss  resulting  from  misconduct  of  any  of  the 
agents  employed  by  the  captors,  as  the  prize-mas- 
ter or  prize  crew — neglect  in  not  employing  a  pilot.^ 
In  cases  of  gross  misconduct  on  the  part  of  private 
captors,  the  court  will  decree  a  revocation  of  their 
commission.^ 

But  it  is  a  rule  of  prize  courts,  that  application  Liable  for 

.  ,  •  T  negligence  or 

tor  remedial  process  against  captors  lor  misconduct  misconduct. 
or  negligence  must  be  made  without  any  unreason- 
able delay.     K  the  injured  parties  lie  by  for  such 

'  The  Betsij,  1  Rob.,  93 ;  The  Catherine  and  Anne,  4  Rob.,  39 ; 
The  Caroline,  4  Rob.  256  ;  Del  Col.  vs.  Arnold,  3  Dall.,  333  ;  The 
Uehr  Mohr,  3  Rob.,  229 ;  The  Speculation,  2  Rob.,  293;  The 
William,  6  Rob.,  316;  Wilcocks  vs.  Union  Ins.  Co.,  2  Binney, 
574. 

^  The  Marianne,  5  Rob.,  9. 


394  DUTY    01"    CAPTORS. 

lengtli  of  time  that  the  captors  may  be  fairly  pre- 
sumed to  have  lost  or  been  deprived  of  such  evi- 
dence as  they  might  have  adduced  in  exculpation,  :i 
monition  will  not  issue  against  them.^ 
To  send  the       When  a  maritime  capture  is  complete,  it  is  the 
?eSnt  po?r'  duty  of  the  captors  to  send  the  vessel  into  some 
convenient    port   for   adjudication.      What    is    in- 
tended  by   convenient   port   has  been   heretofore 
considered.^ 
With  prize-        To  this  end  it  is  their  duty  to  put  on  board  the 
priz^cre^^     captured  ship  a  proper  prize-master,  and  a  sufficient 
unless  captur-  ■yy/y^^^  cTew  to  navi2:ate  the  vessel  into  port,  unless, 

ed   crew   con- I  o  pi 

sent  to  navi-  iudccd,  the  capturcd  crew  consent  to  perform  the 
^^^'  service,  which,  however,  they  are  not  in  general 

bound  to  do. 

If  they  do  consent,  they  thereby  exonerate  the 
captors  from  all  liability  for  loss  or  damage  result- 
ing from  improper  or  unskilful  navigation."'  If  any 
cruelty  or  unnecessary  force,  such  as  putting  in 
irons  or  handcuffs,  is  used  towards  the  crew  ^f  a 
neutral  ship  captured,  a  prize  court  will  decree 
damages  to  the  injured  parties.^ 
Captors  pro-        Under  peculiar  circumstances,  and  in  cases  of 

hibited  from  ■     -,<  •  i  ,  •  1 1         x    i 

converting      overrulmg  necessity,  captors   may,  without    being 
SSkingbuik,  thereby  deprived  of  the  effects  of  a  lawful  posses- 

'  The  Purissima  Conception,  6  Rob.,  45. 

'  The  Huldah,  3  Rob.,  235 ;  The  Madonna  del  Bursa,  4  Rob., 
169;  The  St.  Juan  BajJtiata,  5  Rob.,  33;  The  Wilhelmherg,  5 
Rob.,  143;  The  EUehe,  5  Rob.,  173;  The  Lively,  1  Gall.,  :ur,; 
The   Washington,  6  Rob.,  275;    The  Principe,  Edwards,  70. 

'  Wilcox  vs.  Union  Ins.  Co.,  2  Binney,  574 ;  The  Resolution, 
6  Rob.,  13;  The  Pennsylvania,  1  Acton,  33;  The  Alexander. 
1  (;all.,  532,  and  6\  C,  8  Cranch,  169. 

•*  The  St.  Juan  Baptista,  5  Rob.,  33 ,  The  Die  Frie  Darmr, 
6  Rob.,  357. 


DUTY    OF    CAPTOKS.  395 

sion,  land  or  even  sell  tlie  prize  goods.  But  in  all  ceptfromoTer- 
such  cases,  tlie  biu'den  is  upon  them,  to  satisfy  tlie  sity.^  ^ 
court  of  their  perfect  good  faith,  and  the  circum- 
stances giving  rise  to  the  necessity,  otherwise  any 
and  every  spoliation  or  damage  to  the  captured 
ship,  any  breaking  bulk,  or  conversion  of  the  prop- 
erty, Av^ill  deprive  them  of  all  benefit  of  capture, 
and  subject  them  to  a  decree  for  damages,  costs, 
and  expenses.^ 

The  master,  and  principal  officers,  and  some  of  the  ^^^  ^^  °fP- 

'  -■■  -•■  ,     .        ,     .  tors  to  send  in 

crew  of  the  captured  vessel,  should,  m  all  instances,  master  and  of- 
be  sent  with  the  vessel  into  the  port  of  adjudicti-  some'  of  the 
tion.     This  is  a  settled  rule  of  j^rize  courts,  and  the  cIpTured*^ves- 
importance  of  its  invariable  observance  cannot  be  sei. 
overestimated. 

Durino^  the  war  of  1812,  between  the  United  Great  import- 

SiIlCG    of   tliis 

States  and  Great  Britain,  this  rule  was  enforced  b}'  rule,  and  ef- 

,1  '    1     '      _L         ±'  jy  J.^        T>        '  T       J.  1j.i"^    fects  of  its  vio- 

the  sj)ecial  instructions  oi  the  rresicient,  and  theiation. 
violation  of  these  instructions  involved  a  loss  of  all 
benefit  of  capture.  Captors  should  understand  that 
by  the  established  rules  of  prize  courts,  the  examin- 
ation of  the  master  and  officers,  and  if  possible  some 
of  the  crew,  of  the  captured  vessel,  is  the  initiatory 
step  in  proceedings  for  condemnation,  and  without 
such  examination  (except  by  special  permission  in 
rare  cases,  shomiig  physical  impossibility),  no  pro- 
ceedinofs  can  be  taken.^ 


o 


'  The  Concordia,  2  Rob.,  102;  L'lJole,  6  Rob.,  220;  The 
Washiw/ton,  6  Rob.,  276;  Clerk's  Praxis,  163;  Bel  Col.  vs.  Ar- 
nold, 3  DalL,  333;  The  Maria,  4  Rob.,  348.;  The  Rendsberg,  6 
Rob.,  142. 

*  The  Eliza  and  Katy,  6  Rob.,  185;  The  Henrick  and  Maria, 
4  Rob.,  43,  57. 


396  CO.AIMISSIONERS    OF   PRIZE. 

On  arrival  at      As  soon  as  tliG  vessel  01"  property  captured  ar- 

Sion!^  filsf'' rives  at  the  port  of  adjudication,  it  is  the  duty  of 

the"ac£iira/f^  ^^^  captors  (therein  represented  by  the  prize-maste^ 

if  the  prize  is  thus  sent  and  not  carried  into  port  b} 

the  captors  themselves),  forthwith  to  give  notice  of 

the  fact  of  arrival  to  the  admiralty  judge,  or  to  the 

prize  commissioners  of  the  port  or  district,  and  at 

To  deliver  up  t]ie  samc  time  to  deliver  into  the  hands  of  the  judge 

documents      or  his  commissiouers,  all  the  papers  and  documents 

board.  °"        fouud  ou  board  the  caj)tured  vessel,  accompanied 

With  affidavit  by  au  affidavit  that  the  papers  and  documents  thus 

that   they  are   it  t  'xI  t  l'  i  n 

in  the  precise  delivered  up  are  m  the  same  condition  as  when  they 
fouS^^whe^n  "^vere  taken,  without  fraud,  addition,  subduction,  or 
taken.  embezzlement.     The  prize  property  is  thereafter  in 

the  custody  of  the  court,  and  the  duty  of  the  cap- 
tors is  ended  until  action  on  their  part  becomes  ne- 
cessary to  procure  an  adjudication.^ 

The  next  step  in  the  proceeding  is  taken  by  the 
commissioners  of  prize,  which  leads  to  a  consider- 
ation of  the  powers  and  duties  of  the  prize  commis- 
sioners. 

Prize  Commis-      Prize  commissioncrs  are  officers  of  the  court  of 

Bioners.  ^      .  .  .      . 

Their  appoint-  adm-iTalty.  They  are  appointed  and  commissioned 
Sduti^I^'^^'  ^J  the  court,  and  hold  their  office  during  the  pleas- 
ure of  the  cornet,  or  until  the  termination  of  the  w^ar 
which  occasioned  their  appointment ;  and  the  court 
may  appoint  as  many  in  number  as  the  exigencies 
require.  The  purpose  of  their  :;ppointment  is  to 
relieve  the  court  from  the  performance  of  many  of 
the  onerous  duties  to  which  the  exercise  of  prize 

'  Ordonnance  de  la  Marine,  1681,  Til.  9,  Art.  21 ;  Cull.  Shiv., 
168. 


COMMISSIONERS    OF    PEIZE.  897 

jurisdiction  of  necessity  gives  rise.  In  tlie  name  of 
the  court  tliey  receive  possession  of  the  prize  prop- 
erty when  brought  within  its  jurisdiction,  as  well 
as  the  papers  and  documents  found  and  taken  with 
it ;  and  it  is  their  duty  to  enclose  the  papers  and 
documents  in  a  secure  enclosure,  and  the  same  to 
seal  with  their  proper  seal,  and  then  to  lodge  them 
in  the  registry  of  the  coui't.  So,  too,  ^vith  regard 
to  the  prize  property,  it  is  their  duty  to  place  their 
seal  upon  the  hatches  of  the  vessel,  and  upon  what- 
ever doors,  coverings  or  enclosures  of  any  kind  are 
used  to  shelter  and  j^rotect  the  cargo,  so  that  the 
same  cannot  be  tampered  with  without  violation  of 
their  seal.  It  is  their  duty  to  appoint  pro]3er  cus- 
todians to  be  left  in  the  charge  and  safe-keeping  of 
the  prize  property,  so  long  as  the  same  shall  remain 
in  court,  or  until  the  possession  of  the  commis- 
sioners shall  be  superseded  by  that  of  the  ordinary 
officer  of  the  court,  the  marshal. 

The  papers,  and  documents,  and  prize  property,  to  take  rhe 

I     '  ,-1  1     '       J^  j_i^j_i  i_         testimony   of 

being  thus  secured,  m  the  custody  oi  the  court  as  tiie  master,  of- 
the  guardian  of  the  public  interests,  it  is  next  the  p^Je^rew^ 
duty  of  the  commissioners  to  proceed  without  any  de- 
lay whatever,  that  is  to  say,  as  soon  as  possible  after 
the  arrival  of  the  vessel,  to  take  the  examination  of 
witnesses,  who  are  to  be  none  others  than  the  mas- 
ter, officers  and  crew  of  the  captured  vessel,  or  per- 
sons actually  on  board  at  the  time  of  the  capture. 
The  examination  is  always  confined  to  such  persons 
in  the  first  instance,  and  is  never  extended  save  by 
special  permission  or  upon  an  order  for  further 
proof.     Inasmuch  as  the  hearing  before  the  court  is  R"ies  as  to 

7>    ,  .  .,        .  ,,  ,-,  -,  examination 

to  be  primarily,  m  all  cases,  upon  the  papers  and  of  witnesses. 
documents,  and  the  examination  of  the  persons  on 


398  COMMISSIOISrEES    OF   PRIZE. 

board  brought  in  witli  the  prize,  and  upon  no  other 
evidence  whatever,  the  rules  of  the  court  require  a 
strict  adherence  to  all  the  prescribed  formalities  in 
the  taking  of  this  testimony.  These  rules  are  as 
follows  : 

First.  The  witnesses  must  be  produced  before 
the  commissioners  in  succession,  so  that  all  may  be 
examined,  before  the  examination  of  any  one  is 
transmitted  to  and  filed  with  the  court.  After 
such  transmission  no  other  witness  can  be  exam- 
ined without  a  special  order  of  the  court. 

Second.  The  witnesses  mast  be  examined  sepa- 
rately and  apart  from  each  other,  and  without  the 
instruction  or  presence  of  counsel,  or  of  any  other 
person  than  the  commissioners,  their  clerk,  secre- 
tary or  actuary,  and  agents  of  the  parties,  other 
than  professional ;  and  during  the  examination 
the  witnesses  are  not  allowed  to  communicate 
with  or  l)e  instructed  by  counsel.  If  professional 
counsel  were  allowed  to  be  present  at  the  ex- 
amination, and  especially  if  they  were  allowed  to 
take  notes  of  the  testimony,  the  purpose  of  the 
rule,  which  rigidly  requires  the  witnesses  to  be 
examined  apart  from  each  other,  might  be  entirely 
defeated. 

Third.  The  examination  of  the  witnesses -is,  in 
all  cases,  to  be  on  the  standing  interrogatories  in 
preparatorio^  as  they  are  denominated.  The  stand- 
ing interrogatories  used  in  the  English  courts  of 
admiralty,  have  been  drawn  with  great  care  .und 
precision,  and  contain  sifting  inquiries  upon  every 
point  which  may  possibly  affect  the  question  of 
prize.  These  interrogatories,  which  may  be  found 
in   1   Kobinson's  Eeports,  381,  have  served  as  a 


COMMISSIONEKS    OF   PlilZE.  399 

model  for  otlier  courts.  Witli  some  additions,  but 
with  little  variation,  they  have  been  adopted  by  the 
several  district  judges  in  the  courts  of  the  United 
States,  and  with  some  modifications  prepared  by  the 
learned  judge  for  the  southern  district  of  New 
York,  will  be  found  in  the  appendix,  together  with 
the  prize  rules  adopted  by  that  court. 

Fourth.  In  the  taking  of  the  examination  of 
witnesses,  it  is  the  duty  of  the  commissioners  to  re- 
quire each  question  to  be  answered,  and  to  write 
down  the  answers,  or  cause  them  to  be  written 
down,  fully  and  perfectly,  so  as  to  meet  the  point 
of  every  inquiry,  and  not  allow  the  witness  to  evade 
a  searching  question  by  vague  or  ambiguous  state- 
ments. In  the  event  of  a  refusal  of  a  witness  either 
to  answer  at  all,  or  to  answer  fully,  it  is  the  duty  of 
the  commissioners  to  certify  the  fact  to  the  court,  in 
which  case,  not  only  is  the  witness  subjected  to  the 
]3enalty  of  imprisonment  for  contempt,  but  the  own- 
ers of  the  ship  and  cargo  may  be  subjected  to  the 
consequences  of  a  Avilful  suppression  of  evidence. 

Fifth.  After  the  examination  is  complete,  it  is 
the  duty  of  the  commissioners  to  read  or  cause  to 
be  read  to  the  witness,  each  sheet  of  the  same,  and 
require  him  to  sign  each  sheet  separately,  and  also 
to  affix  thereto  their  own  signatures,  or  the  signa- 
ture of  one  of  them,  if  only  one  be  present,  or  the 
commissioners  jointly  or  separately,  as  they  please, 
and  as  emergencies  may  require. 

Sixth.  When  the  examination  of  all  the  wit- 
nesses is  concluded,  it  is  the  duty  of  the  commis- 
sioners securely  to  enclose  the  same,  and  cause  it  to 
be  sealed  with  their  seals,  and,  together  with  any 
papers  and  documents  found  on  board  the  vessel, 


400  THE    PMZE-LIBEL. 

aud  not  l-efore  lodged  in  the  registry  of  the  court, 
to  be  fortliwitli  trausmitted  to  tlie  court ;  and  no 
papers  or  documents  found  on  board,  and  not  de- 
livered to  the  judge  or  the  commissioners  before, 
or  at  the  time  of,  the  examination,  will  be  admitted 
in  evidence.  . 

These  several  rules  of  practice  will  be  found  to  be 
recognized  and  established  in  many  decided  cases.^ 

As  soon  as  the  papers,  and  documents,  and  pre- 
j^aratory  examinations  are  transmitted  to  the  regis- 
try of  the  court,  it  is  the  duty  of  the  captors,  with- 
out delay,  to  apply  to  the  court  for  adjudication; 
and  in  case  of  neglect  or  refusal  on  their  part,  the 
'  ,     ,.,  ,  .     claimants  may  do  so.     This  is  done  by  libel.     The 

The  lioel   m  ,  ^  -^  ... 

prize  and  its  prize  libcl  should  be  general  in  its  allegation,  con- 
proper  form.      ,    •    •  •   1  J         /»  i  1         •  ; 

taming  no  special  averments  oi  the  circumstances 
on  wliich  the  captoi's  base  their  claim  to  condemna- 
tion ;  but  simply  setting  forth  the  bringing  the  ves- 
sel in,  and  the  proceedings  against  her,  and  alleging 
generally  that  she  is  a  subject  of  prize  rights.  They 
are  not  required  to  state  their  grounds.  They  are  en- 
titled to  institute  the  inquiry,  and  take  the  chances 
of  the  benefit  of  any  fact  that  the  in<,|uiry  may 
elicit.''^  This  is  considered  an  advantage  in  favor 
of  the  captors,  but  controlled  by  their  liability  for 
costs  and  damages,  if  the  inquiry  should  prove  fu- 
tile ;  and  over-balanced  by  the  advantage  in  favor 
of  the  claimant,  that  all  the  evidence  upon  which  the 

'  The  Eliza  and  Katy,  6  Rob.,  185;  The  Henrich  and  Maria, 
4  Rob.,  4.3 ;  The  Speculation,  2  Rob.,  243 ;  T/ie  Wtlliam  and 
Mary,  4  Rob.,  381;  The  Apollo,  5  Rob.,  286;  The  Viyiluntia, 
1  Rob.,  1  ;  Jennings  vs.  Carson,  4  Cranch,  2. 

'  The  Adeline,  9  Cranch,  244 ;   The  Fortuna,  1  Dod.,  81. 


THE    MONITION    AND    WAREANT. 


401 


libel  must  1>e  heard,  in  tlie  first  instance,  proceeds 
from  himself,  his.  own  documents,  his  own  witnesses, 
— the  captors  not  being  permitted,  except  in  cases 
marked  by  peculiar  cii'cumstances,  to  furnish  any 
evidence  whatever. 

The  prize  libel  is  filed  by  a  proctor  for  the  cap-  By  whom  mei 
tors.  In  England,  in  cases  of  capture  by  govern- 
ment shij^s,  the  libel  is  filed  and  the  proceedings 
conducted  by  the  ofiicers  of  the  government  exclu- 
sively; for  it  is  there  held,  that  the  croAvn  pos- 
sesses the  power  to  release  the  prize,  against  the 
will  and  in  defeat  of  the  rights  of  the  captors,  at 
any  time  before  adjudication.^  In  the  United  States, 
although  the  courts  have  never  been  required  to 
pass  upon  the  question,  it  is  not  probable  that  the 
same  exclusive  authority  would  be  recognized ;  for 
there,  after  the  libel  is  filed,  the  power  is  vested  in 
the  court  alone,  and  no  release  or  restitution  of  the 
property  can  be  made  but  by  a  decree  of  the  court.^ 
It  was  suggested  by  Judge  Story,  that  in  such  a 
case,  and  where  the  libel  was  filed  by  the  district 
attorney,  the  court  would,  in  the  absence  of  the  cap- 
tors, appoint  a  proctor  to  represent  their  interests. 

Upon  the  filing  of  the  libel,  a  monition  forth-  Monition  and 

'1.1     '  •!.'  n  '    ±  j.ii  warrant. 

With  issues.  Citing  all  persons  interested,  to  appear 
at  a  day  named  therein  (which,  in  England,  is  twen- 
ty days,  but  in  the  United  States  is  fixed  at  the 
discretion  of  the  district  judge),  and  show  cause 
why  the   property  should  not  be  condemned   as 

'  The  Elsehe,  5  Rob.,  155,  173. 

-  Vide  Appendix  of  Supplementary  Rules  and  General  Principles 

announced  by  the  United  States  Judge  of  tbe  District  of  New 

York. 

26 


402  DECREE,    IF   NO    CLAIM 


prize;  and  iu  England,  as  well  as  in  tlie  United 
States,  tlie  monition  usually  includes  a  waiTant  to 
take  possession  of  the  property.  The  necessity  of 
such  a  warrant  is  apparent,  where  the  property,  as 
•  in  England,  is  in  the  custody  of  the  captors,  until 
the  filing  of  the  libel ;  but  not  so  apparent,  where, 
as  in  the  United  States,  it  is  already  in  the  custody 
of  the  court ;  for  it  would  be  a  mere  transfer  from 
the  custody  of  the  commissioners  who  are  officers 
of  the  court,  to  that  of  the  marshal,  who  is  also  an 
officer  of  the  court.  But  this  change  of  custody, 
under  a  warrant  issued  with  the  monition,  has  been 
the  usual  practice  in  the  United  States ;  and  when 
the  marshal  thus  takes  possession,  he  is  bound  to 
keep  the  property  in  salva  et  arcta  custodia  y  and 
if,  by  his  negligence,  any  loss  happens,  he  is  respon- 
sible to  the  court ;  for  he,  like  the  commissioners, 
is  the  mere  agent  of  the  court,  engaged  to  make 
effitictive  its  guardianship. 

Service  of  mo-  The  monitioii  is  served  in  England  by  posting  a 
copy  at  the  Royal  Exchange,  in  London;  in  the 
United  States,  by  posting  a  copy  on  the  mast  of 
the  prize  vessel,  and  wheresoever  the  judge  may 
direct,  and  also  by  publication  in  the  newspapers 
of  the  place  or  vicinity. 

Proceedings         If  upou  the  rctum  dav  of  the  process,  no  claim 

on  return  day  -  -,  -,  .  -.  -\    t*      ■>       » 

if  no  claim  IS  or  has  been  interj)osed,  a  default  is  entered  of 
record,  and  the  court  thereupon  proceeds  to  exam- 
ine the  evidence ;  and  if  the  proof  of  enemy's  prop- 
erty— or  of  lawful  prize  for  any  sufficient  cause,  if 
it  be  not  enemy's  property  be  clearly  established — 
will  immediately  decree  condemnation.  If,  upon  the 
evidence,  the  case  appear  at  all  doubtful,  a  decision 
will  be  postponed. 


THE   CLAI!.:    AND   ITS    II^CIDENTS.  403 

It  has  been  customary,  by  the  modern  practice, 
not  to  condemn  merchandise  in  default  of  claim, 
till  a  year  and  a  day  have  elapsed  after  the  service 
of  process,  except  where  the  presumption  is  strong 
of  enemy's  property,  upon  reasonable  evidence.^ 

If,  however,  a  claim  be  interposed,  the  cause  is  to  The  claim, 
be  heard  in  its  23roper  order,  upon  the  ship's  papers 
and  the  preparatory  examinations.  This  brings  us 
to  a  consideration  of  the  claim  made,  in  opposition 
to  the  alleged  rights  of  the  captors,  and  the  rules 
by  which  it  is  governed. 

The  claim  must  be  made  by  the  parties  interested.  By  whom 
if  present,  and  if  not,  by  the  master  of  the  vessel,  or  ™^  ^' 
by  some  agent  of  the  owners  of  the  property.     It 
must  be  made  by  the  general  owner  of  the  prop- 
erty ;  one  who  has  a  lien  upon  it  for  the  payment  of  a 
debt,  liquidated  or  not,  is  not  entitled  to  claim,  nor  is 
a  mortgagee  where  the  morgagor  remains  in  posses-  ■ 
sion.  A  mere  stranger  is  not  permitted  to  interpose  a 
claim,  to  speculate  on  the  chances  of  restitution.^ 

It  is  a  general  principle,  well  established,  that  no 
one  can  be  allowed  to  claim  in  a  prize  court,  where 
the  transaction  in  which  he  is  eno-ao-ed  is  in  viola- 
tion  of  the  municipal  laws  of  his  own  country.^ 


'  The  Harrison,  1  Wheat.,  298 ;  The  Staadt  Embden,  1  Rob., 
26  ;   The  Avery,  2  Gall.,  308. 

-  The  Betsy,  1  Rob.,  98  ;  The  Mentor,  1  Rob.,  181 ;  The  Hul- 
dah,  3  Rob.,  239  ;  The  George,  3  Rob.,  129  ;  The  William,  4  Rob., 
215;  The  Susanna,  6  Rob.,  48;  The  Tobago,  5  Rob.,  218;  The 
Frances,  8  Cranch,  235,  413 ;  The  Marianna,  6  Rob.,  24  ;  Bolch 
vs.  Barrel,  Bee.,  74. 

*  The  Walsingham  Packet,  2  Rob.,  11  ;  The  Elrusco,  4  Rob., 
262  ;  The  Cornelius  and  Maria,  5  Rob.,  23  ;  The  Abbey,  ib.,  251 ; 
The  Recovery,  6  Rob.,  341. 


40 J  THE    CLAIM    AXD    IT-    TNCIDEl^TS. 

Nor  can  one  be  allowed  to  interpose  a  claim  who 
is  en  Of  aired  in  a  trade  forbidden  by  tlie  laws  of 
nature,  of  his  own  country,  and  of  the  forum.^ 
Unless  under  a  flag  of  truce,  a  pass,  license,  treaty, 
or  some  public  act  of  suspension  of  hostile  charac- 
ter, the  rule  is  inflexible  that  an  enemy  cannot 
interpose  a  claim.^ 

And  even  where  a  capture  has  been  made  in 
violation  of  the  territorial  jurisdiction  of  a  neutral 
country,  the  claim  for  restitution  cannot  be  made 
by  the  enemy  in  person,  but  must  be  by  the  neutral 
government.  The  form  of  the  claim  consists  of  a 
simple  statement  of  ownerehip  and  denial  of  lawful 
prize.  It  is  not  amendable,  as  a  ihatter  of  course, 
nor  will  an  amendment  be  allowed  to  correct  the 
generality  of  a  claim,  unless  sufficient  excuse  is 
shown  for  the  omission  on  filing.^  An  appearance 
by  a  proctor  for  the  claimants  duly  entered,  cures 
all  defects  of  process,  such  as  the  want  of  monition 
or  of  due  notice ;  and  a  general  appearance  for  one 
partner  is  binding  upon  all,  even  though  the  one 
had  no  special  authority  to  appoint  a  proctor.*  The 
claim  must,  in  all  cases,  be  accompanied  by  an 
Affidavit  of  affidavit  of  the  claimant  or  his  la^vful  representa- 
tive (where  the  owner  is  absent  at  a  great  distance), 
specifying  the  facts  on  which  the  claim  is  based^  and 
their  verity ;  and  before  a  claim  is  filed,  accom- 
panied' by  a  special  affidavit  of  the  facts  relied  on 
to  sustain  it,  it  is  a  settled  rule  that  no  party  is 
permitted  to  examine  the  papers  filed  or  the  pre- 

'  The  Amedie,  Edinburgh  Review,  Vol.  XVI.,  No.  21,  p.  426. 

*  The  Hoop,  1  Rob.,  196;    The  Vrow  Catkerina,  5    Rob.,  15, 
and  note  to  3  Rob.,  1  62. 

'  The  Graaf  Bernstoff,  3  Rob.,  109;   The  Sally,  3  Rob.,  179 

*  Ponhallow  vs.  Jones,  3  Dallas,  87. 


claimant. 


THE   CLAEM    AND    ITS    INCIDENTS.  405 

paratory  examination  wliicli  lias  been  transmitted 

to  the  court.     Sucli  examinations,  as  enablinsf  par-  Papers  in  reg- 

.  .    '  ^    ^  istry  not  ex- 

ties  to  shape  theu*  claims  to  suit  the  case  as  estab-  aminabie  until 
lished,  might  lead  to  very  great  abuses.  Where,  affida^t^^. 
however,  a  reference  to  the  ship's  papers  may  be 
essential,  to  enable  a  party  to  state  in  his  affidavit 
the  particulars  of  his  claim,  in  such  case,  and  upon 
a  specirJ-  application,  setting  forth  the  particular  pa- 
})er  or  fact  sought  to  be  ascertained,  the  court  will 
allow  an  examination  of  the  paper  specially  relating 
to  that  j)articular  named  in  the  apj)lication.^  As  a 
general  rule,  it  is  settled,  that  no  claim  which  is  di- 
i-ectly  antagonistic  to  the  ship's  papers  and  the  pre- 
paratory examination  can  be  admitted.  This,  how- 
everj  applies  to  cases  arising  during,  and  not  prior  to, 
the  war.  x\nd  when  a  necessity  of  a  simulation  of 
papers,  can  be  shown  by  a  citizen,  as  in  the  case 
of  trade  with  the  enemy  licensed  by  the  state,  the 
rule  is  not  so  unbendins"  as  to  exclude  his  interest.^ 

It  is  a  mistaken  idea  that  has  been  entertained,  ciaim  for  de- 

1  n,  •  ,        f  ,       1  1  1     •      livery  on  bail.] 

that  after  an  appraisement  ot  property  brought  in 
as  prize,  the  claimant ,  is  entitled  to  its  delivery  to 
him  as  of  course,  upon  the  execution  of  sufficient 
bail  therefor.  This  is  not  so,  for  it  is  an  established 
rule  of  prize  courts,  never  to  allow  property  to  be 
delivered  on  bail,  except  by  the  consent  of  all  the 
parties,  prior  to  a  hearing,  in  the  first  instance,  upon 
the  ship's  papers  and  the  examinations  in  prepara- 
torio. 

If  any  of  the  prize  property  be  perishable,  an 
interlocutory  decree  of  sale  may  be  had,  so  that 
no  inconvenience  can  result  from  an  adherence  to 

HI 

'-  The  Fort  Mary,  3  Rob.,  233. 

•  La  Flora,  G  Rob.,  1  ;   The  Anna  Catherina,  5  Rob.,  15. 


406  THE  HEAKING LEGAL  PEESUMPTIONS. 

^  the  rule,  wliereas  its  violation  would  inevitably 
lead  to  fraudulent  practices.^  Even  after  a  hearing, 
if  tlie  claim  should  be  rejected,  or  be  affected  by  an 
imputation  of  fraudulent  or  unlawful  conduct,  al- 
though an  a23peal  be  interposed,  the  application 
for  a  delivery  of  the  property  on  bail  will  not  be 
granted.  But  if  the  claimant  should  obtain  a 
decree  in  his  favor,  interposition  of  an  aj)peal  by 
the  captors,  will  not  prevent  a  favorable  consider- 
ation, by  the  court,  of  an  application  for  delivery 
of  the  property  on  bail.  And  such  an  application 
is  always  listened  to,  if,  after  the  hearing,  the  case 
be  so  doubtful  that  an  order  for  further  proof  is 
directed  by  the  court. 

In  all  cases,  the  hearing  in  the  first  instance,  is 
upon  the  libel  and  claim,  the  ship's  papers  and 
documents  found  on  board,  and  the  examination 
of  the  master  and  officers  and  crew  of  the  captured 
vessel.  "  This  is  not,"  as  Judge  Story  says,  "  a  mere 
matter  of  practice  and  form;  it  is  the  very  essence 
of  the  administration  of  prize  law,  and  it  is  a  great 
mistake'  to  admit  the  common  law  notions  in  re- 
spect to  evidence  to  prevail  in  proceedings  which 
have  no  analogy  to  tho^e  at  common  law."^ 
Effect  of  de-  If,  upou  the  hearing,  a  decree  of  condemnation  be 
demnation'o'n  rendered,  and  the  claimants  appeal  therefrom,  the 
captors  are,  in  general,  entitled  to  a  delivery  of  the 
prize  property  u2:)on  bail ;  but  if  there  be  no  appeal, 
then  the  decree  of  condemnation  is  forthwith  exe- 
cuted by  a  sale  and  distribution  of  the  proceeds. 

'  The  CopenhaJ^n,  3  Rob.,  1*78. 

»  \Yheaton,  494,  note;    The  Francis,  1  Gall,  614,  and  8  Cr., 
348;   The  Diana,  2  Gall.,  164  ;  Piatt's  Story,  69. 


hearinj?. 


THE   HEAKING LEGAL   PEESUMPTIOKS.  407 

In  prize  courts,  as  in  all  other  judicial  tribunuls,  Presumptions 
tliere  are  certain  legal  presumptions  wMcli  affect  courts. 
tlie  parties,  and  are  regarded  as  of  general  applica- 
tion. Thus,  possession  is  considered  as  prima  evi- 
dence of  property  f  and  thus,  the  title  to  property 
captured,  is  presumed  to  be  in  the  enemy,  in  the 
absence  of  all  evidence  to  establish  any  proprietary 
interest.^     And  so,  too,  goods  found  in  an  enemy's  ^^^  the  bur- 

-  .  '  '  °  /       den   of  proof 

ship,  are  j)resumed  to  be  enemy  s  property,  unless  resulting 
accomj)anyiug  them  there  be  documentary  proof  of  *  ^^*^  ^^"^ 
a  distinct  neutral  character.^  Where  proj^erty  falls 
within  the  character  of  contraband,  it  is  presumed 
not  to  be  the  product  of  the  claimant's  own  coun- 
try, which  exempts  it  from  seizure,  unless  that  fact 
be  proved  by  the  claimant.* 

A  merchant  transacting  business  as  such,  is  pre- 
sumed to  be  doing  so  on  his  own  account ;  but  if 
the  person  acting  be  not  a  merchant,  that  may  give 
a  qualified  character  to  his  acts.^ 

Where  a  ship  has  been  captured  and  carried  into 
the  port  of  an  enemy,  and  is  subsequently  found  in 
the  possession  of  a  neutral,  the  presumption  is,  that 
there  has  been  a  regular  condemnation  and  sale,  and 
it  is  incumbent  on  the  party  claiming  the  property- 
from  the  neutral  possession,  to  prove  the  contrary." 

Where,  by  the  provisions  of  a  treaty,  persons  hap- 
pening to  be  settled  in  a  ceded  port,  are  to  remove 

'  Miller  vs.  The  Resolution,  2  Dall.,  19. 
'  The  Maf/nus,  1  Rob.,  31. 

'  ^  Locceniiis,  Lib.  II.,  c.  ii.,  n.  4 ;  Gros  de  Jur.  Bel,  et  Pac,  Lib. 
III.,  c.  vi.,  §  6. 

*  The  Twee  Jafroiven,  4  Rob.,  242. 
'  The  Jonge  Pieter,  4  Rob.,  242. 

*  The  Couniess  of  Lauderdale,  4  Rob.,  283. 


408  THE   HEARESTG.  > 

therefrom,  the  presumption  is  in  their  favor,  and 
must  be  rebutted  by  proof  that  they  did  not  intend 
to  remove.' 

The  testimony  of  the  master  of  the  captured  ves- 
sel as  to  her  destination,  and  also  as  to  the  alleged 
treatment  of  the  crew,  is  held  conclusive  upon  these 
points,  if  it  be  not  contradicted  or  faiiiy  discred- 
ited.^ 

The  national       The  national  character  of  the  captured  property 

cli<ir<ictGr  of  •  X  J.       J.         «/ 

prize  property  is,  in  the  large  majority  of  cases,  the  principal  ques- 
qiies^dOT 'dL  tion  discusscd  on  the  hearing.     The  determination 


cussed  on  the 
hearint;. 


O 


f  this  question  depends  upon  many  and  various 
circumstances,  such  as  the  habits  and  trade  of  the 
ship,  the  nature  of  the  voyage  and  cargo,  the  legal 
or  illegal  conduct  of  the  parties,  and  ujyon  the  na- 
tional domicil  of  the  asserted  proprietor,  or  the 
natm-e  of  the  title  by  virtue  of  which  he  claims. 
These  several  insignia  of  hostility  of  character  have 
already  been  fully  considered  in  the  chapter  treat- 
ing of  that  subject.  In  this  connection  it  will  be 
sufficient  simply  to  refer  to  the  leading  principles, 
and  to  the  decisions  of  the  prize  courts  by  which 
they  have  been  established.  In  all  cases  of  con- 
demnation, whatever  be  the  fact,  by  intendment  of 
law  the  property  is  deemed  enemy's  property,'and 
is  eo  nomine  condemned.^ 

In  the  determination  of  the  question  of  enemy  or 

'  The  Diana,  5  Rob.,  60. 

*  The  Die  Frie  Darner,  5  Rob.,  857. 

'  The  Elscbe,  5  Rob.,  1V3  ;  The  Nelly,  1  Rob.,  219;  The 
Alexander,  8  Crancb,  169;  The  Julia,  8  Cranch,  181;  The 
Thomas  Gibbons,  8  Cranch,  421 ;  The  St.  Lawrence,  1  Gall.,  532 ; 
The  Joseph,  1  Gall.,  545. 


THE   HEAEING.  409 

neutral,  it  is  settled,  that  where  a  person  has  his 
domicil,  there  is  his  country,  whatever  may  be  his 
country  of  birth  or  adoption.^ 

In  all  cases,  the  master  and  crew  are  presumed  Question  of 
to  possess  the  national  character  of  the  vessel  to  acter. 
which  they  are  attached,  during  the  time  of  their 
employment.^ 

A  person  who  remains  in  a  belligerent  country  As  affected  by 
for  several  years,  paying  taxes,  etc.,  though  his  de- 
sign at  first  was  a  mere  temporary  sojourn,  loses  his 
national  character.^ 

A  neutral  consul  resident  and  trading  in  a  bel- 
ligerent country,  is  deemed  a  belligerent.* 

The  native  character  reverts  at  once,  upon  re- 
moval, and  indeed  as  soon  as  one  puts  himself  i'". 
itinera  to  his  native  country,  animo  revertendi. 

A  neutral  merchant  trading;  in  the  enemy's  coun-  As  affected  by 

'-'  ''  trade. 

try  as  a  privileged  trader,  is  deemed  an  enemy,  but 
not  if  he  be  engaged  in  the  ordinary  and  accus- 
tomed trade  of  neutral  merchants.^ 

The  domicil  of  a  commercial  partnership  is  reg- 
ulated by  that  of  the  persons  composing.® 

'  The  Vigilantia,  1  Rob.,  1 ;  The  Endraught,  1  Rob.,  19;  The 
Susan  Christina,  1  Rob.,  237  ;  The  Indian  Chief,  3  Rob.,  23 ; 
The  President^  5  Rob.,  277 ;  The  Neptunus,  6  Rob.,  403  ;  The 
Venus,  9  Cranch.,  253;  The  Frances,  1  Gall.,  614;  McConnel  vs. 
Hector,  3  Bos.  and  Pul.,  113. 

''  The  Endraught,  1  Rob.,  23;  The  Bernou,  1  Rob.,  102;  The 
Frederick,  5  Rob.,  8  ;   The  Ann,  1  Dod.,  221. 

^  The  Harmony,  2  Rob.,  232. 

*  The  Indian  Chief,  3  Rob.,  22  ;  The  Josephine,  4  Rob.,  25  ; 
The  Citto,  3  Rob.,  38 ;  La  Virginie,  5  Rob.,  98 ;  The  St.  Law- 
rente,  1  Gall.,  457. 

^  The  Anna  Catherina,  4  Rob.,  119;   The  Rendsberg,  4  Rob.,  1 39. 

'  The  Viglantia,  1  Rob.,  1,  14,  19;  The  Susa,  2  Rob.,  255; 
The  Indiana,  3  Rob.,  44  ;  The  Portland,  3  Rob.,  44  ;  TJie  Vriend- 


410  THE   HEAEING. 

If  a  neutral  merchant  continue  in  a  liouse  of 
trade  in  the  enemy's  country  after  knowledge  of  the 
war,  he  is  regarded  as  an  enemy.^ 

The  character  of  the  traffic  alone,  is  sometimes 
suiiic'ent  proof  of  hostile  character,  as,  if  a  neutral 
be  engaged  in  the  enemy's  navigation,  it  impresses 
a  h(^rttile  character  upon  all  his  vessels  which  have 
no  distinct  national  character,  as  well  as  the  one  so 
employed.^ 
As  affected  by     TJie  flasT  or  pass  under  which  a  ship  is  sailed  is 

the  ship's  flag  ^         -^  .  ^ 

or  pass.  deemed  conclusive  evidence  oi  its  national  charac- 

ter, though  in  general,  the  national  character  of  a 
vessel  depends  on  the  domicil  of  the  owner ;  but 
the  owner  is  bound  by  the  flag  or  pass  which  he 
sees  fit  to  make  use  of,  and  when  it  happens  to 
operate  against  him,  he  is  not  at  liberty  to  deny  the 
character  which  he  assumed  for  his  benefit.  Such 
flag  or  pass  so  assumed  does  not  bind  otlier paHies  as 
against  the  owner.  They  are  at  liberty  to  prove 
the  spurious  character  of  the  credentials,  and  the 
sifting  of  the  evidence  upon  the  hearing,  by  23rize 
courts,  is  frequently  directed  to  removing  the  mask 
and  exposing  the  true  character  of  the  vessel  in 
question.^ 

schap,  4  Rob.,  166;  The  Jonge  JUassina,  5  Rob.,  297";  The 
Antonia  Johanna,  1  Wheat.,  159  ;  The  St.  Jose  Indiana,  2  Gall., 
268. 

'  The  Francis,  1  Gallis.,  618,  and  S.  C,  8  Crancb,  348;  The 
iSusa,  2  Rob.,  251,  255. 

^  The  Vriendschaj),  4  Rob.,  166. 

■''  The  Vicjilantia,  1  Rob.,  1,  19,  26;  The  Vrow  Cafherina,  5 
Rob.,  161;  The  Success,  1  Dod.,  131;  The  Planter's  Wench,  5 
Rob.,  22  ;  The  Magnus,  1  Rob.,  31 ;  The  Fortuna,  1  Dod.,  h7.  ; 
The  Princessa,  2  Rob.,  49;  The  Anna  Cafherina,  4  Rob.,  107; 
The  Comm'rcc,  1  Wheat.,  382. 


THE   HEAED^^.  411 

The  subject  of  the  transfer  of  enemy's  ships  duv-  As  affected  by  * 
ing  war,  has  already  been  fully  considered.     The  seis  during 
effect  of  such  transfer  becomes  very  often  an  im-  ^^^' 
portant  question  at  the  hearing,  and  has  frequently 
been  discussed  in  prize  courts.     The  student  is  re- 
ferred to  numerous  additional  authorities,  illustrat- 
ing the  practice  of  the  tribunals.^ 

So,  too,  has  already  been  considered,  the  effect  ^nd  the  trans- 

n       ^  _o  n  ,      .  n  x     fer  of  goods  t» 

01  a  transier  ot  property  m  cargo,  from  an  enemy  to  transitu. 
neutrals,  while  upon  the  voyage,  or  as  it  is  called, 
in  transitu.  This  is  a  fruitful  question  for  discus- 
sion, and  the  determination  of  prize  courts  upon  the 
hearing ;  and  the  reader  is  here  referred  to  many 
decisions  upon  the  subject  both  by  the  courts  of 
England  and  the  United  States.^ 

It  is  sufficient  after   the  consideration  already  niegai  trade  as 
given  to  the  subject  of  illegal  trade,  or  that  which  prieta?/ ir- 
becomes  illegal  during  war,  to  refer  to  the  leading  ®^^^" 
decisions  of  the  prize  courts  upon  that  subject,  as 


'  The  Phcenix,  5  Rob.,  20  ;  The  Dree  Gebroedcrs,  4  Rob.,  232 ; 
Bentzori's  Claim,  9  Cranch,  191 ;  The  Bernou,  1  Rob.,  102  ;  The 
Sechs  Gedschmistem,  4  Rob.,  100  ;  Tfie  Argo,  1  Rob.,  158  ;  The 
Jenny,  4  Rob.,  31 ;  The  Omnibus,  6  Rob.,  7l ;  The  Minerva, 
6  Rob.,  396  ;  The  PacTft  de  Bilboa,  1  Rob.,133  ;  The  JSfoyt  Gcd- 
acht,  2  Rob.,  13Y,  note  a. 

^  The  Danckebaar  Africaan,  1  Rob.,  107  ;  The  Ilatsfelda,  1 
Rob.,  114  ;  The  Vrow  Margaretha,  1  Rob.,  336  ;  The  Jan  Frede- 
rick, 5  Rob.,  128  ;  The  Carl  Walter,  4  Rob.,  207  ;  The  Sally,  3 
Rob.,  300,  note  a  ;  The  Atlas,  3  Rob.,  299  ;  The  Anna  Cutherina, 
4  Rob.,  107  ;  The  Bindsburg,  4  Rob.,  121  ;  The  Jan  Frederick,  5 
Rob.,  128  ;  The  Aurora,  4  Rob.,  218  ;  The  Merrimack,  8  Cranch 
31'7  ;  The  Mai^anna,  6  Rob.,  24  ;  The  St.  Jose  Indiana,  2  Gallis., 
268,  1  Wheat.,  208  ;  The  Venus,  8  Cranch,  253  ;  The  Frances,  1 
Gall.,  445,  S.  C,  8  Cranch,  344,  9  Cranch,  183  ;  The  Mary  and 
Susan,  1  Wheat.,  25  ;    The  Josephine,  4  Rob.,  25. 


412  TpE   HEAELNG. 

affecting  the  important  question  to  be  determined 

at  tlie  hearing  of  proj^rietary  interest.^ 

The  effect  of      Allied  to  the  subject  of  illegal  trade,  prize  courts 

blockade;  of  are  ofteu  required,  at   the   hearing,  to   determine 

Sadef  tirade    I'^^on  the  e^ddeuce,  whether  there  has  been  a  viola- 

on  enemy's     ^'^.^  ^^y  r^j^  attempted  violatiou  of  a  lawful  block- 
coast,  or  with  .  nn     ' 

her  colonies;  ade,  an  illegal  traffic  m  contraband  of  war,  a  resist- 

and  resistance  ,ii  '    i  ,       f  i  ,     •       ii 

to  search.  auce  to  the  right  oi  search,  an  engagement  m  the 
coasting  or  colonial  trade  of  the  enemy,  or  unneu- 
tral conduct  of  any  character.  These  several  sub- 
jects have  been  fully  reviewed.  Some  further  au- 
thorities are  here  referred  to,  as  well  as  others  re- 
lating to  the  principles  adopted  by  prize  courts  as 
to  the  important  question,  of  the  binding  character 
of  the  acts  of  the  master  of  the  vessel,  under  vari- 
ous cii'cumstances  upon  the  owner  of  the  vessel  or 
the  cargo.^ 

=  The  Vigilantia,  1  Rob.,  1,  U;  The  Hoop,  1  Rob.,  196;  Potts 
vs.  Bell,  8  T.  R.,  548  ;  The  Rapid,  8  Crancb,  155 ;  S.  C,  1  Gall., 
295;  The  Alexander,  %  Cx&nch,  169;  S.  C,  1  Gallis,  532  ;  The 
Joseph,  8  Cranch,  451  ;  S.  C,  1  Gallis,  545  ;  The  Nuiadc,  4  Rob., 
251  ;  The  Neptunus,  6  Rob.,  403  ;  The  Danous,  i  Rob.,  255  ; 
The  Ann,  1  Dod.,  221  ;  The  Abhy,  5  Rob.,  251  ;  The  Mary,  1 
Gallis.,  620;  S.  C,  9  Cranch,  120;  The  Lord  Welliuyion,  2  Gall- 
is,, 103;  The  Julia,  1  Gallis.,  594;  S.  C,  8  Crancb,  181  ;  The 
Aurora,  8  Cranch,  203 ;  The  Hiram,  8  Cranch,  444 ;  S.  C,  1 
"V^lieat.,  440  ;  The  Ariadne,  2  Wheat,  143  ;  The  Atlas,  .3"  Rob., 
299  ;   The  Snlly,  3  Rob.,  300,  and  note  a. 

'  The  Boeder  Lust,  5  Rob.,  233,  1  Wheat.,  389,  note,  1  Wheat., 
50*7;  app.  note  3;  The  Vroiv  Judith,  1  Rob.,  150;  The  Adonis, 
5  Rob.,  256  ;  The  Imina,  3  Rob.,  167  ;  The  Mars,  6  Rob.,  79  ; 
The  Romlie  and  Betty,  2  Rob.,  343  ;  The  Alexander,  4  Rob.,  93 ; 
The  EUehe,  5  Rob.,  173;  The  Shepherdess,  5  Rob.,  262;  The 
Hiram,  1  Wheat.,  440;  The  Dispatch,  3  Rob.,  279;  The  Nvrpide, 
9  Cranch,  388  ;  The  Fanny,  1  Dod.,  443  ;  The  Vroto  Judith, 
1  Rob.,  150;  The  St.  Mcholas,  1  Wheat.,  417;  T/,e  Rhanix 
Ins.  Co.  vs.  Pratt,  2  Binney,  308  ;   Oswell  vs.  Vigm,  15  Last., 


DECEEE — CONDEMIS'ATIOX    AND    ITS    IN^CIDEISTTS.  413 

Wlien  a  sentence  is  pronounced  in  a  prize  court,  Tiie  decree  of 

,  .  '        ,T       n      ,    •       ,  Til  "ji       condemnation 

upon  a  hearing  m  the  nrst  instance,  wnetner  it  be  and  proceed- 
of  condemnation,  or  acquittal  and  restitution,  it  is,  ^^^^  thereon. 
in  all  cases,  an  interlocutory  decree,  where  any  thing 
farther  remains  to  be  done  by  the  court,  after  de- 
ciding that  the  j^roperty  is  to  be  condemned  or  re- 
stored. And  first,  we  will  briefly  review  the  sub- 
sequent proceedings  upon  an  interlocutory  decree 
of  condemnation. 

Condemnation  being:  decreed,  the  next  question  "^ho  are  cap- 

-,  .  .  7  ,       tors  and  jomt- 

ror  the  prize  court  to  determine  is,  w/io  are  the  cMptors  enti- 
captors  entitled  to  distribution.  in'^distriimtfon. 

We  have  already  passed  in  review  the  settled 
principles  upon  which  this  question  is  to  be  decided 
by  the  court ;  in  connection  with  captures  made  by 
commissioned  or  non-commissioned  vessels — public, 
private  or  armed  vessels — and  as  to  joint-capture, 
and  the  jOTnciples  upon  which  it  is  to  be  determined 
what  is  a  joint-capture,  and  who  are  entitled  to  share 
in  the  distribution  as  joint-captors. 

It  is  not  usual  to  file  a  claim  of  ioint-capture  be-  ^J^^J^,^  ^\^^^^ 

"  \  of  jomt  capture 

fore  tliQ  interlocutory  decree  of  condemnation ;  but  to  be  filed,  and 

.^..-i        -IT  T  i'lii.  J  If    -\'    •    •^      •'         how  made  and 

II  it  be  delayed  until  after  a  decree  or  distribution,  established. 
it  is  too  late — unless  it  should  happen  that  an  ap- 
peal lias  been  taken  from  the  decree,  when,  as  mat- 
ter of  favor,  it  seems  that  a  claim  of  joint-capture 
ma}^  be  admitted.^ 

It  is  a  settled  rule  of  prize  courts,  that  a  claim 
of  joint-capture  must  be  made  in  the  ordinary  way, 
by  a  regular  allegation  of  the  facts  and  circuni- 

70;   The  Neptunus,  1  Bob.,  IVO  ;    The  Hoop,  1  Rob.,  196;     The 
Daankbaarheit,  1  Dod.,  183. 

'  Duckworth  vs.  Tucker,  2  Taunt.,  7  ;  The  Stella  del  Norte,  5 
Rob.,  349 ;  Home  vs.  Camden,  2  H.  Bl.,  533. 


414  DECllEE CONDEMNATION    AND    ITS    INCIDENTS. 

stauces  relied  upon  to  entitle  the  claimants  to  share, 
to  whicli  allegations  the  captors  are  permitted  to 
file  counter-allegations,  and  the  issue  thus  made,  is 
to  be  sustained  by  proofs  (the  onus  being  uj^on  the 
claimants  to  the  rights  of  joint-captors)  taken  be- 
fore the  commissioners — ^being  documentary,  and 
the  testimony  of  competent  witnesses.  No  oral 
evidence  is  admitted,  nor. are  ex  parte  affidavits  al- 
lowed.^ If,  upon  the  allegations  set  forth  in  the 
claim  filed,  the  court  should  be  clearly  satisfied 
that,  as  matter  of  law,  the  claim  cannot  be  sus- 
tained, it  will  be  rejected  in  limine,  without  in- 
quiry into  the  facts.^  To  sustain  a  claim  of  joint- 
capture,  proof  of  the  admission  of  the  fact  of  joint- 
caj^ture  by  the  capturing  ship  at  the  time  of  cap- 
ture, is  considered  conclusive,  unless  invalidated; 
and  a  renunciation  of  the  claim  at  the  time  by  the 
asserted  joint-captors,  is  alike  conclusive.  The  evi- 
dence of  witnesses  on  board  the  ship  setting  up  the 
claim  of  joint-capture,  unless  corroborated  by  evi- 
dence aliunde,  is  never  sufficient  to  sustain  the 
Distributive  claim.^  In  the  case  of  joint-capture  by  public 
ships,  the  distributive  portions  are  regulated  gen- 
erally by  statute  provisions. 

In  the  United  States,  this  is  done  by  the  act  of 
April  22d,  1800,  ch.  xxxiii,,  providing  that  the  cap- 
turing ships  shall  share  '*  according  to  the  number 
of  men  and  guns  on  board  each  ship  in  sight." 

'^Thc  Urania,  5  Rob.,  148;  La  Virginie,  5  Rob.,  124;  The 
Union,  1  Dod.,  346  ;   The  John,  1  Docl,  363. 

'  The  Wtiaksamheid,  3  Rob.,  1. 

'  The  Fadrelandet,  5  Rob.,  120;  La  Flore,  5  Rob.,  268:  The 
John,  1  Dod.,  363;  The  San  Jose,  6  Rob.,  244;  The  Willvnn 
and  Mary,  4  Rob.,  381. 


proportious. 


DECEEE CONDEMNATION    AND    ITS   INCIDENTS.  -415 

No  statute  provisions  for  distribution  exist  in  the 
case  of  joint-capture  by  privateers.  By  the  general 
rule  of  the  prize  law,  distribution  in  such  case  is  to 
be  in  proportion  to  the  relative  strength,  ascertained 
by  the  number  of  men  on  board  each  ship  assisting 
in  the  capture.^ 

Upon  a  decree  of  condemnation,  if  no  claim  of  Ij^J^^i^^Jo^]'''^ 
joint-capture  be  interposed,  and  there  be  no  appeal,  when  there  is 
the  right  rests  in  the  captors ;  and  in  England,  if  joint-capture 
the  capture  be  by  a  private  armed  vessel,  the  captors  ^^*^  ""^  ^^'^^'''^■ 
are  put  in  possession  and  permitted  to  make  sal§, 
and  return   an   account  into   court.      But  in  the 
United  States,  all  sales  of  prize  property,  whether 
before  or  after  decree,  are  made  by  the  marshal, 
under  the  provisions  of  the  act  of  Congress,  of  Jan- 
uary 27th,  1813,  chap.  civ. 

To  enable  the  court  to  render  a  final  decree  of  P^^'f  of  dis- 
tribution. 

distribution  after  the  sale,  it  is  requisite  that  the 
testimony  should  be  taken  by  the  commissioners, 
bearing  upon  the  questions  of  superiority  or  infe- 
riority of  force,  and  of  the  officers  and  men  en- 
titled to  share  in  their  several  grades,  as  shown 
'by  the  muster-rolls,  etc.,  and  report  the  same  to  the 
court. 

In  the  case  of  capture  by  public  armed  ships,  the 
condemnation  is  always  to  the  government,  but  the 
proceeds  are  distributed  pursuant  to  statute  pro- 
visions ;  and  this  provision,  in  the  United  States, 
is  made  by  the  act  of  April  23d,  1800,  chap,  xxxiii., 
and  the  prize  act  of  June  26, 1812,  chap,  cvii.,  makes 
provision  for  the  distribution  of  the  proceeds  where 

'  Roberts  vs.  Hartley,  Doner.,  311;  The  BisjJatch,  2  Gall.,  1; 
Duckworth  vs.  Tucker,  2  Taunt.,  7 ;  The  Twee  Gesuster,  2  Rob., 
284;  Le  Franc,  2  Rob.,  285. 


416  DECEEE CONDEJmATIOlSr    AND    ITS    INCIDENTS. 

the  capture  is  made  by  duly  commissioned  priva- 
teers. In  the  appendix  will  be  found  the  general 
provisions  as  to  distribution.  Non-commissioned 
persons  are  not,  as  a  general  rule,  entitled  to  the 
benefit  of  prize ;  but  exceptions  have  been  made  in 
favor  of  cases  where  great  personal  gallantry  has 
been  exhibited,  and  prize  courts  have,  in  some 
instances,  awarded  to  such  persons  the  entire  pro- 
ceeds.^ 

Decreo  neces-  «  Distribution  cannot  be  made  without  a  decree, 

sary  to  distri-         -,  i      j  •  xi  t       ••  r«     ;i 

bution.  ^"^nd  such  decree  is  upon  the  application  of   the 

parties  or  the  mere  motion  of  the  court  itself;  but 
no  one  can  claim  a  share,  whose  claim  has  not  been 
admitted  and  su^^ported  in  the  prize  court.^  As  to 
the  circumstances  under  which  a  commander  is  or 
is  not  entitled  to  share,  much  discussion  has  been 
had ;  and  all  the  authorities,  both  in  England  and 
the  United  States,  upon  this  point,  are  collected  in 
a  decision  of  one  of  the  United  States  coui-ts,  to 
which  reference  is  made.^ 

Head-money.  By  statute,  both  ill  England  and  the  United 
States  (the  latter  by  the  act  of  April  23d,  1800, 
chap,  xxxiii.,  §  T),  in  addition  to  the  prize  proceeds, 
a  bounty  of  twenty  dollars  for  each  person  on  board 
any  ship  of  an  enemy  at  the  commencement  of  an 
action,  which  is  sunk  or  destroyed  by  any  shi])  of 

'  The  ffaase,  1  Eob.,  286  ;  The  Amor  Parentum,  1  Hob,,  303; 
The  Joseph,  1  Gall.,  545. 

*  Kean  vs.  Brig  Gloucester,  2  Dall.,  36  ;  Penhallow  vs.  Doave, 
3  Dall.,  54;  The  Herkimer,  Stewart,  128;  Bingham  vs.  Cahot, 
3  Dall.,  19. 

^Decatur  vs.  Chew,  1  Gall.,  506;  vide  also  The  Diomede,  1 
Acton,  69,  239. 


DECREk CONDEMNATION    AND    ITS    ESTCLDENTS.  417 

e([ual  or  inferior  force^  is  granted  for  division  among  • 

tlie  officers  and  crew  as  prize  money — and  this  is 
called  head-tTioney.  Tlie  act  of  the  Congress  of  the 
United  States  upon  this  subject,  has  received  no 
judicial  construction;  but  under  the  British  a<;t 
there  have  been  several  decisions,  to  which  refer- 
ence is  made.^  < 

Where  no  special  statute  intervenes,  the  decree 
of  distribution  is  executed  in  the  manner  and  by 
the  persons  prescribed  by  the  court,  whether  clerk, 
marshal,  prize  agent,  or  commissioners,  and  the 
power  of  the  court  is  summarily  exercised  to  com- 
pel the  accounting  for  and  payment  of  prize  pro- 
ceeds by  all  persons  in  whose  hands  they  have  been 
intrusted  or  deposited.  This  may  be  by  a  proceed- 
ing either  in  rem  or  in  ^personam  ;  and  the  remedy 
is  not  limited  to  any  stipulation  taken  in  the  cause, 
but  the  prize  proceeds  will  be  followed  wheresoever 
they  have  gone,  unless  they  have  reached  the  hands 
of  a  honajide  purchaser  without  notice  of  the  claim.^ 

As  a  general  principle,  the  power  of  a  prize  court 
subsists  after  a  general  adjudication,  to  take  any 
proceedings  that  may  be  requisite  to  the  final  and 


'  Several  Dutch  Schuc/ts,  6  Rob.,  48;  L'Alerte,  6  Rob.,  238; 
The  San  Joseph,  6  Rob.,  331 ;  The  Babi/lion,  Edw.,  39 ;  La 
Clornlde,  1  DocL,  436;  L'El'm,  1  Dod.,  442;  The  Matilda, 
1  Dod.,  367. 

^  Willis  vs.  Commissioners,  4  T.  R.  33;  S.  C,  5  East.,  22; 
Bingham  vs.  Cahot,  3  Dall.,  19  ;  Hill  vs.  Ross,  3  Dall.,  331 ;  Home 
vs,  Camden,  1  H.  Bl.,  474  ;  The  Louis,  5  Rob.,  146  ;  The  Pomona ^ 
1  Dod.,  95;  The  Polly,  5  Rob.,  147;  The  Printz  Henrl'k  Von 
Prnsnen,  6  Rob.,  95  ;   The  Exeter,  1  Rob.,  173  ;   The  Princessa,  2 

Rob.,  31. 
27 


418  DECKEE OOJSTDEMNATIOlSr    AND    ITS    INCIDENTS. 

definitive  settlement  of  every  thing  respecting  tlie 
prize.^ 

By  act  of  Congress,  of  April,  1849,  cli.  ciii.,  §  8, 
tlie  office  of  prize  agent  is  abolished.  It  is  under- 
stood that  the  defalcations  and  malfeasances  of  sev 
er^l  of  these  officers  who  were  intrusted  with  the 
proceeds  of  the  prizes  taken  by  the  vessels  of  the 
navy  in  the  Gulf  of  Mexico,  duiing  the  war  between 
the  United  States  and  Mexico  induced  this  provi- 
sion. The  same  act  provides,  that  "  All  prize  money 
from  captures  made  by  the  vessels  of  the  navy  of 
the  United  States,  received  hy  the  marshal,  ivho 
shall  mahe  sale  of  such  prizes,  or  the  net  proceeds 
thereof  after  paying  therefrom  all  charges  as  pro- 
vided by  law,  shall,  within  sixty  days  after  such 
sale,  be  deposited  in  the  treasury  of  the  United 
States,  to  be  disbursed  therefrom  as  provided  by 
law  under  the  dii'ections  of  the  secretary  of  the 
navy." 

This  statute  provision  has  received  no  judicial 
construction.  It  is  apprehended  that  it  was  not  its 
purj^ose  to  (nor  does  it  in  terms)  supersede  the  ne- 
cessity of  a  regular  decree  of  distribution  by  the 
prize  court.  Such  decree  is  frequently  based  iij^on 
the  determination  of  the  nice  and  sometimes  -com- 
plicated questions  arising  under  claims  of  joint-cap- 
ture, etc.,  which  are  the  proper  subjects  for  the  ad- 
judication of  prize  courts,  and  it  could  not  have 
been  intended  to  clothe  the  department  of  the  navy 
with  any  of  the  functions  of  a  judicial  tribunal. 

It  was  the  obvious  desio;n  of  the  law  to  avoid  in 

'  The  cases  last  cited. 


DECEEE RESTITUTIO Jf    ON   RECAPTURE.  419 

the  future,  tlie  complaints  and  annoyances  wMcTi 
had  resulted  from  a  fraudulent  diversion  by  prize 
agents,  from  the  hands  of  the  lawful  distributees,  of 
the  funds  intrusted  to  them  for  distribution. 

Ordinarily,  an  execution  of  the  decree  of  distribu- 
tion, by  officers  of  the  court,  acting  under  the  direct 
authority  of  the  court,  and  drawing  the  fund  from 
the  registry  or  depository  of  the  court,  would  not 
only  be  much  more  convenient  to  the  distributees, 
but  it  would  save  to  them  the  additional  expense 
resulting  from  the  employment  of  an  agent  to  repre- 
sent them  at  the  navy  department. 

In  the  great  majority  of  cases,  it  is  believed  that 
the  purpose  of  the  law  would  be  accom2:)lished, 
without  any  departure  from  its  provisions,  by  the 
exercise  of  that  discretion  with  which  the  court  as 
a  prize  court  is  unquestionably  clothed,  of  direct- 
ing a  sale  of  the  prize  pro23erty  to  be  made  by  the 
commissioners  of  prize,  the  proceeds  to  be  by  them 
received  and  deposited  in  the  registry,  or  with  the 
usual  depository  of  the  coui't,  and  by  them  dis- 
bursed therefrom,  pursuant  to  the  law  and  the  pro- 
visions of  the  decree. 

If  the  documentary  proofs  and  the  examination  Decree  of  res- 

,       .        T      -1  /.  ,  T       titution  on  re- 

m  j^reparatorio^  disclose  a  case  or  recapture  merely,  capture. 
then  two  questions  arise — first,  whether  the  original 
belligerent  owner  is  or  not  entitled  to  restitution, 
and  if  so  entitled,  what  is  the  compensation  to  be 
paid  by  way  of  salvage  ? 

We  have  already  fully  considered  the  principles  when  made, 
and  authorities  upon  which  the  right  of  the  bellige-  paymlnt^'^of^^ 
rent  owner,  whose  ship  having  been  captured  by  ^^^^^s®- 
the  enemy  is  recaptured,  to  have  restitution  made 


420  DECEEE DESTITUTION SALVAGE. 

to  liini,  exists  or  is  lost,  in  that  chapter  treating  of 
the  jm  postliminium.  And  also  the  subject  of  the 
compensation  in  way  of  salvage,  where  the  owner 
is  entitled  to  a  restitution. 

Here,  it  is  only  necessary  to  refer  to  some  few 
additional  authorities,  illustrative  of  the  practice 
and  })roceedings  of  prize  courts  in  such  cases.^ 
Military  sal-  Discussious  as  to  the  general  principles  of  law 
Imounrregu^-  upou  which  Salvage  should  be  awarded  to  recap- 
uic'^kf  the*'  tors  on  a  decree  of  restitution,  and  the  measure 
United  States.  Qf  compensation,  are  superseded  by  the  interven- 
tion of  legislative  provisions.  This  is  the  case  in 
the  United  States.  By  act  of  Congress  of  March 
3d,  Chap,  xiv.,  it  is  provided,  that  in  cases  of  re- 
caj)ture  of  vessels  or  goods  belonging  to  persons 
resident  within  or  under  the  protection  of  the 
United  States,  the  same  not  having  been  condemned 
as  prize,  hy  competent  authority  hefore  the  recapture^ 
shall  be  restored  on  payment  of  salvage  of  one 
eighth  of  the  value,  if  recaptured  by  a  public  ship, 
and  one  sixth,  if  recaptui'ed  by  a  private  ship ;  and 
if  the  recaptured  vessel  shall  appear  to  have  been 
set  forth  and  armed  as  a  vessel  of  war,  before  such 
capture,  or  afterwards,  and  before  the  recapture, 
then  the  salvage  to  be  one  moiety  of  the  value. 
If  the  recaptured  vessel  belong  to  the  government 

'  The  Sa7iia  Cruz,  1  Rob.,  50;  L'Actif,  Edw.,  185;  Thr  Cey- 
lon, 1  Dods.,  105;  The  Purssima  Conception,  6  Rob.,  45;  The 
Victoria^  Edw.,  97 ;  The  Flad  Oyen,  1  Rob.,  1.35 ;  The  Cosmop- 
olite, 3  Rob.,  333  ;  Hudson  vs.  Guestier,  4  Cranch,  293,  S.  C, 
6  Cranch,  281;  The  Arabella  and  Madeira,  2  Gallis.,  368;  The- 
Falcon,  6  Rob.,  194;  The  Schooner  Sophie,  6  Rob.,  138;  The 
Kiertighett,  3  Rob.,  96  ;  The  Perseverance,  2  Rob.,  139  ;  The  Nos- 
tra de  Conceicas,  5  Rob.,  294  ;  The  Countess  of  Lauderdale,  4  Rob., 
283. 


DECREE RESTITUTION DAMAGE COSTS EXPENSES.  421 

and  be  unarmed^  tlie  salvage  to  be  one  sixth  if  re- 
captured by  a  private  sliip,  and  one  twelfth  if 
reea^jtured  by  a  public  ship ;  if  armed,  then  tbe 
salvage  to  be  one  moiety  if  recaptured  by  a  public 
ship.  In  respect  to  public  armed  sliips,  tlie  statute 
provides  for  the  same  rate  of  salvage  by  the  cargo 
as  by  the  vessel ;  but  in  respect  to  private  ships 
(as  it  is  apprehended  by  inadvertence),  the  rate 
of  salvage  is  made  the  same  on  the  cargo  whether 
the  vessel  be  armed  or  unarmed.^ 

What  constitutes  a  "  setting  forth  as  a  vessel  of 
war,"  withiQ  the  meaning  of  this  act,  has  received 
no  judicial  construction  by  the  United  States  court, 
but  the  same  provision,  by  a  like  clause  in  the  Brit- 
ish act,  has  received  the  interpretation  of  the  English 
courts  in  the  cases  cited.^ 

Salvage,  when  allowed  as  a  condition  of  restitu- 
tion of  recaptured  property,  is  ascertained  either 
by  an  appraisal  of  the  proj^erty  by  appraisers  duly 
appointed  by  the  court,  or  by  its  sale,  if  the  parties 
consent  to  such  mode  ;  and  its  distribution  is  upon 
decree,  in  like  manner  as  the  distribution  of  the 
proceeds  of  pri^ie,  upon  condemnation  and  sale. 

Where,  upon  the  hearing,  in  the  first  instance,  Question  of 
upon  the  papers  and  documents  found  on  board  and  Spenses!' 
the  vessel,  and   the   examination   i7i  preparatorio^^^^^^^%^^^^ 

'  _      ^  ^  Jr     J.  decree  oi  rea- 

taken  by  the  commissioners,  it  appears,  that  for  titution. 
any  cause,  in  the  judgment  of  the  coui't,  restitution 
should  be  decreed  in  favor  of  the  claimants,  the 

'  The  Adeline,  9  Cranch,  244. 

*  The  Ceylon,  i  Dod.,  105;   The  Horatio,   6   Rob.,   320;   The 
Noa.a  Signora  del  Rosario,  3  Rob.,  10. 


422  DECEEE KEblixUTION DAMAGE COSTS EXPENSES. 

questiou  tlieu  arises  wlietlier  upon  such  restitution, 
tlie  damages,  costs,  and  expenses  are  to  be  paid  by 
the  captors  or  the  costs  and  expenses  by  the  claini- 
ants.  This  rests  entirely  in  the  discretion  of  the 
court;  and  by  the  practice  of  prize  courts  has  been 
made  to  depend  upon  the  proof  of  probable  cause 
of  capture. 

Wherever,  upon  the  evidence  taken  in  the  first 
instance,  the  case  is  so  doubtful  that  an  order  for 
further  proof  is  made  by  the  court,  the  costs  and 
expenses  are  never  allowed  to  the  claimant.^  Nor 
where  the  neutrality  of  the  property  does  not  ap- 
pear either  by  the  documents  or  the  evidence.^ 
Nor  are  such  costs  and  expenses  allowed  in  the 
case  of  a  destiiiction  or  spoliation  of  papers,  unless 
such  destruction  or  spoliation  has  been  occasioned 
by  the  misconduct  of  the  captors  themselves,  as  by 
firing  under  false  colors.^  Nor  where  the  master 
or-  crew  prevaricate  on  the  examination.*  Nor 
where  any  portion  of  the  cargo  is  condemned.^ 
Nor  where  the  ship  comes  from  a  blockaded  port.'' 
Nor,  if  the(  ship  be  restored  by  consent,  without 
reservation  of  the  question  of  costs  and  expenses.^ 
But  in  each  one  of  these  and  similar  cases,  showing 
a  probable  or  reasonable  cause  of  captui'e,  it  is  in 
the  discretion  of  the  court  to  allow  the  costs  and 

'  The  Diana,  5  Rob.,  67 ;   The  Einigheden,  1  Rob.,  323. 

*  The  Statira,  2  Cranch,  102,  note  (a) ;  vide  Letter  of  Lord 
Stowell  and  Sir  J.  Nicholl  in  'the  Appendix. 

"The  Peacock,  4  Rob.,  185. 

*  The  William,  €  Rob.,  316. 

'  The  Frederick  Molke,  1  Rob.,  86  ;  The  Betsy,  1  Rob.,  93  , 
The  Vrow  Judith,  1  Rob.,  150. 

*  The  cases  last  cited. 

'  The  Maria  Powlona,  6  Rob.,  236. 


DECREE KESTIT  UTIOIf DAMAGE COSTS EXPEK  SES,  423 

expenses  to  tlie  captors,  and  order  tlieni  to  be  paid 
by  the  claimants  as  a  condition  of  restitution.^ 
Wlierever  the  captors  are  justified  in  their  cap- 
ture, their  costs  and  expenses  are  decreed  to  them 
on  restitution."  For  this  reason,  they  are  allowed 
their  costs  and  expenses,  where  the  original  desti- 
nation of  the  vessel  was  to  the  blockaded  port, 
although  changed  on  hearing  of  the  blockade.^ 
"Where  the  captui'ed  ship  was  sailing  under  false 
colors,  whether  the  ship  be  an  enemy's  ship  or 
not.*  Where  the  nature  of  the  cargo  is  ambiguous, 
as  to  its  being  contraband.^  And  in  ev'ery  case 
where  farther  proof  is  required  by  order  of  court." 

Wherever  the  expenses  of  the  captors  are  al- 
lowed, such  expenses  are  intended  as  are  necessa- 
rily incurred  as  a  consequence  of  the  capture — such 
as  agents'  expenses,  navigation  expenses,  pilots'  ex- 
penses, harbor  expenses,  &c. — but  not  the  expenses 
of  insurance  made  by  the  captors,  nor  the  expenses  ■ 
of  transmitting  a  cargo  from  a  colony  to  the  mother 
country.  The  expenses  of  keeping  the  property,  of 
its  unloading  and  delivery,  generally  fall  on  the 
captors,  unless  where  it  is  made  a  charge,  or  where 
it  is  specially  apportioned,  by  order  of  the  court.''^ 

'  Vide  Letter  of  Lord  Stowell  and  Sir  J.  NichoU,  Appendix. 
2  The  Imina,  8  Rob.,  167;   The  Principe,  Edw.,  70. 

*  The  Sarah,  3  Rob.,  330. 

*  The  Ttvende  Broder,  4  Rob.,  33  ;  The  Gate  Gesetschaft,  4  Rob., 
94;    The  Christina  Maria,  4  Rob.,  166. 

*  The  cases  last  cited,  and  The  Nostra  Sigwjra,  c&c,  6  Rob.,  41. 
«  The  Frances,  1  Gall.,  445;    The  Apollo,  4  Rob.,  158;    The 

Mary,  9  Cranch,  126.  , 

'  The  Asa   Grande,  Edw.,  45 ;    The  Catherine  and  Anna,  4 

Rob.,  39;    The  Narcissus,  4  Rob.,  17  ;  The  Bendsbery,  6  Rob. 
142  ;   The  Industrie,  5  Rob.,  88. 


424  DECREE RESTITUTION DAMAGE COSTS EXPENSES. 

lu  the  case  of  neutral  vessels,  the  master's  per- 
sonal expenses  and  adventure  are  usually  allowed, 
where  his  conduct  has  been  fair  and  unimpeach- 
able ;  but  where  the  master  or  crew  prevaricate,  or 
where  the  ship  has  been  engaged  in  an  unlawful  or 
fraudulent  trade,  their  adventures  are  never  re- 
stored/ 
How  dama-  Where  the  damages,  costs  and  expenses  are  to 
expenses'  aL-*^  be  ascertained  and  determined,  it  is  the  practice  of 
certamed.  pnze  courts  to  refer  it  to  the  commissioners  to  hear 
the  parties,  examine  their  statements  and  accounts, 
and  to  report  to  the  court  in  detail,  such  sum  as 
they  think  equitably  or  legally  due  to  the  parties, 
and  to  accompany  their  report  with  the  reasons 
upon  which  they  base  their  allowance  or  disallow- 
ance of  the  respective  items.  Upon  the  return  of 
this  report,  the  parties  are  heard  upon  exceptions, 
substantially — though  not  formally,  as  in  chan- 
cery— ^for  the  proceedings  in  prize  courts  are  always 
as  in  sunnnary  and  not  plenary  suits  in  the  civil 
law.2 

Execution  of       Where  restitution  is  decreed,  and  the  property 

d6Cr66  •  •  •  •  i.  ±  J 

remains  specifically  in  the  custody  of  the  court,  a 
warrant  issues  for  its  delivery  to  the  claimant,  jind 
the  expenses  attending  such  delivery  are  to  be 
borne  by  the  captors,  unless  it  be  ordered  other- 
wise.^ If  the  property  has  been  sold,  and  the  pro- 
ceeds are  in  court,  an  order  issues  for  the  delivery 
of  such  proceeds ;  but,  if  the  proceeds  are  in  the 

'  The  Calypso,  2, Rob.,  298  ;  The  Anna  Catherlua,  6  Rob.,  10; 
The  Anna  Catherlna,  4:  Rob.,  120;  The  Christiansbcrff,  G  Rob.. 
376. 

'  The  Lively/,  1  Gall.,  315.         '  The  Bendsberg,  6  Rob.,  142 


DECEEE DESTITUTION- — DAMAGE COSTS EXPENSES.  425 

hands  of  au  agent  or  tlie  captors,  a  monition  or  an 
attacliment  is  issued,  to  compel  tlie  bringing  in  of 
tlie  proceeds.  By  the  practice  in  the  courts  of  the 
United  States,  if  the  prize  property  is  once  brought 
within  the  territorial  jurisdiction  of  the  court,  either 
the  property  or  its  proceeds  remains  in  court  at  the 
final  decree,  because  it  is  always  either  in  the  cus- 
tody of  the  commissioners  or  the  marshal,  who  hold 
alike  as  officers  of  the  coui't.  The  office  of  prize 
agent  is  abolished  by  statute,  and  the  property  is 
never,  as  in  England,  placed  in  the  possession  of 
the  captors. 

Where  damages  are  decreed  against  the  captors, 
such  decree  is  either  against  them  by  name,  or  by  a 
description  of  their  relation  to  the  ship ;  and  where 
the  decree  is  against  the  owners  of  a  privateer 
generally,  a  monition  may  be  issued  against  them 
personally,  to  compel  the  payment  of  the  damages 
assessed.  Such  monition  may  also  issue  against  the 
sureties  on  their  bond,  given  on  the  granting  of  the 
letters  of  marque.  A  part-owner  is  liable  for  dam- 
ages, where  a  decree  for  damages  has  been  rendered, 
with  that  of  restitution,  even  though  his  name  does 
not  appear  in  the  registry  as  part-owner,  and  the 
representative  of  such  part-owner  is  responsible  for 
costs  and  damages  decreed  generally  against  the 
owners,  although  the  part-owner  of  whom  he  is  the 
representative,  was  not  the  doer  of  the  wrong  for 
which  damage  is  decreed,  and  a  release  by  the 
claimants  of  one  part-owner,  does  not  supersede  the 
necessity  of  making  him  a  party  with  the  others  to 
a  suit  for  the  proceeds.-^ 

'  The    Two  Susannas,  4   Rob.   278 ;     The  Franklin,  4   Rob., 
404  ;   The  St.  Lawrence,  2  Gall.,  19  ;  The  Jefferson,  1  Rob.,  325. 


426  OEDER  FOE  FAETHEE  PEOOF. 

Order  for  far-       If,  uDoii  tlie  hearing  on  tlie  papers  and  prepara- 

ther  proof.         ,  •        ,  •  t       ^  j        '  i*  ±. 

When  made,  tory  examination,  any  doubt  arises  irom  any  quarter, 
or  upon  any  material  point,  tlie  court  may  order 
farther  j)roof,  and  is  in  no  case  precluded  by  tlie 
orioinal  evidence.  Sometimes  sucli  an  order  ^Yill 
be  made  wbere  a  suspicion  is  created  by  tbe  ex- 
trinsic evidence.  An  order  for  fartlier  proof,  how- 
ever, is  rarely  made,  unless  there  be  something  in 
the  original  evidence  which  suggests  the  propriety 
or  the  necessity  of  a  farther  prosecution  of  the  in- 
quiry. Where  the  case  is  quite  clear  in  favor  of 
the  claimant's  right  to  restitution,  and  is  in  no  re- 
spect subject  to  any  just  suspicion,  the  disposition 
of  prize  courts  is  decidedly  against  allowing  the 
captors  to  enter  upon  farther  inquiiy  or  to  intro- 
duce extraneous  evidence.* 

Farther  proof  is  in  no  case  a  matter  of  right  to 
eitheispai*ty,  but  always  rests  in  the  sound  discr©. 
tion  of  the  court.  It  is  only  when  the  parties  have 
conducted  themselves  honestly  and  with  good  faith, 
and  the  errors  or  deficiencies  which  exist  in  the  proof 
are  fairly  referable  to  ignorance  or  honest  mistake, 
that  the  indulgence  is  granted  of  allowing  new  evi- 
dence. 

Where  the  master  does  not  swear  to,  or  givg  ac- 
count of  the  property ;  where  the  shipment,  though 
sworn  to  be  on  neutral  account,  does  not  specify  the 
person ;  where  the  ship  has  been  purchased  in  tlie 
enemy's  country ;  where  any  loss  or  material  sup- 
pression of  papers  has  occurred ;  where  the  papers 
are  defective,  and  the  conduct  of  the  parties,  the 
nature  of  the  voyage,  or  the  nature  of  the  original 

'  The  Adriana,  1  Rob.,  313-  The  Borneo,  6  Rob.,  351 ;  The 
Sarah,  8  Rob.,  33C 


OSDER  FOE  FAETHEE  PEOOF.  4^7 

evidence  creates  a  reasonable  doubt  of  the  proprie- 
tary interest,  the  legality  of  tlie  trade,  or  tbe  integ- 
rity of  tlie  transactions — in  all  sucli  cases,  farther 
proof  becomes  necessary,  and  will  be  permitted  if 
the  privilege  of  introducing  it  be  not  forfeited  by 
the  fraud  or  misconduct  of  the  parties.^ 

In  all  cases  where  farther  proof  is  necessary,  and 
it  is  not  allowed,  a  condemnation  follows  of  course, 
in  like  manner  as  if  the  evidence  had  established 
hostile  character. 

Farther  proof  is  never  allowed  to  claimants  where  when  not  ai- 
fvauduleut  papers  have  been  used,  or  where  there 
has  been  a  voluntary  spoliation  of  papers,  or  a  fraud- 
ulent covering  or  suppression  of  an  enemy's  interest, 
or  where  there  is  a  false  destination  and  false  papers, 
or  where  the  case  is  palpably  incapable  of  fair  ex- 
planation, or  where  there  has  been  prevarication, 
or  an  attempt  to  impose  spurious  claims  upon  the 
court,  or  such  a  general  want  of  good  faith  as  to 
show  that  the  parties  cannot  safely  be  trusted  with 
an  order  for  farther  proof  And  if,  upon  farther 
proof,  -none  sftch  is  produced,  or  that  which  is  pro- 
duced is  defective,  or  the  parties  decline  to  testify, 
or  do  so  evasively,  it  is  deemed  conclusive  against 
them,  and  condemnation  follows ;  for  it  is  a  general 
rule  of  prize  courts,  that  the  omcs  prohandi  rests 
upon  the  claimants,  and  if  they  fail  to  sustain  theii' 
allegations,  condemnation  ensues.^ 

1  TheJonge  Pieter,  4  Rob.,  79;  The  Welvaart,  1  Rob.,  122; 
The  Folly,  2  Rob.,  261;  The  Jnffvow  Anna,  1  Rob.,  125;  The 
Groaf  Brrjistof,  3  Rob.,  109 ;  The  Eenrom,  2  Rob.,  1  ;  The  Juf- 
frow  Elbrecht,  1  Rob.,  127  ;    The  Rising  Sun,  2  Rob.,  104. 

-  The  Nancy,  3  Rob.,  122  ;  The  Mars,  6  Rob.,  79i;  The  Vrow 
Hermina,  1  Rob.,  163;  The  Walsingham  Packet,  2  Rob.,  77;  The 


428  OEDER  FOE  FARTHER  PROOF. 

Fartlier  proof  may  be  ordered  in  favor  of  tlie  one 
party,  and  not  tlie  otlier,  or  in  favor  of  both. 

Evidence  on        Wlicn  it  is  admitted  on  belialf  of  the  captors, 

the^  proof.  ^^  they  may  introduce  papers  taken  on  board  another 
ship,  if  proj^erly  verified  by  affidavit,  and  they  may 

,  invoke  papers  fi'om  another  prize  cause,  snid  upon 

aii  order  for  farther  proof,  the  affidavits  of  the  cap- 
tors themselves,  as  to  facts  within  theii'  own  knowl- 
edge, are  admissible  in  evidence. 

It  has  been  held  in  one  case,  not  however  recon- 
cilable with  the  strict  rule  of  prize  courts,  that 
the  captors,  to  show  the  domicil  of  the  claimants, 
may,  without  an  order  for  farther  proof,  introduce 
at  the  fii'st  hearing,  a  deposition  of  the  claimant, 
given  in  another  cause.^ 

How  farther  Where  farther  proof  is  allowed  the  claimants, 
their  own  depositions,  those  of  their  clerks,  and  the 
correspondence  between  them  and  their  agents,  are 
admissible  in  e\T.dence.'^ 

In  all  cases  of  farther  proof,  the  additional  evi- 
dence, wherever  ^practicable,  should  be  taken  be- 
fore the  prize  commissioners,  and  reported  to  the 
court.  Affidavits  taken  in  foreio^n  countries,  before 
notaries  public,  whose  attestations  are  perfectly 
verified,  have  been  admitted  in  evidence,  but  the 
safer  coui'se  is  that  which  is  adopted  by  the  rule  of 

Rosalie  and  Betty,  2  Rob.,  343 ;  The  Countess  of  Lauderdale,  4 
Rob.,  283. 

'  The  Romeo,  6  Rob.,  351;  The  Maria,  1  Rob.,  340;  The 
Sarah,  3  Rob.,  330  ;  The  Vriendschap,  4  Rob.,  166  ;  The  Resolu- 
tion, 6  Rob.,  13. 

*  The  Adelaide,  3  Rob.,  281  ;  The  Sally,  1  Gall.,  401  ;  The 
Grotius,  9  Cranch,  368 ;  The  Haahat,  6  Rob.,  54 ;  The  Glierk- 
tiget,  6  Rob.,  58;  The  Charlotte  Caroline,  1  Dod.,  192;  The 
Maria,  1  Rob.,  349. 


JUDICIAL    OEDEES    PEISTDEI^'TE   LITE.  429 

the  Supreme  Court  of  the  United  States,  that  re- 
quires all  such  evidence  abroad  to  be  taken  under 
a  commission  issued  out  of  the  cornet. 

Such  commissions,  however,  by  a  general  rule  of 
prize  courts  are  never  issued  to  be  executed  in  the 
country  of  the  enemy .^ 

Upon  the  return  of  the  farther  proof  allowed,  if  ' 
any  such  be  taken,  the  cause  is  again  heard  in  its 
order,  upon  the  original  and  supplemental  proof, 
and  not  again  opened. 

In  the  exercise  of  the  duties  of  prize  courts  as  judicial  orders 
the  guardians  of  the  public  interest,  they  are  fi^e-  i'''"^'^^  ^'^'■ 
quently  required  to  take  some  action  with  reference 
to  the  prize  proj)erty,  during  the  progress  of  the 
proceedings — such  as  the  unlivery  of  the  cargo,  or 
its  appraisal  and  sale,  or  the  sale  of  the  vessel. 

The  unlivery  of  the  cargo  often  becomes  necessary  Unlivery  of 
to  ascertain  its  nature  and  quality,  or  to  preserve  it  ^^^^°' 
from  injury  or  pillage,  or  because  the  ship  stands  in 
a  position  relative  to  the  claim,  altogether  distinct 
from  the  cargo.    In  these  cases,  and  others  in  which  . 
it  may  seem  alike  proper,  the  court,  on  apj)lication, 
will  order  an  unlivery  of  the  cargo.^ 

Upon  an  order  of  unlivery  of  carsro,  the  court  in  '"'hat  man- 

.      .  .  ner  effected 

directs  a  commission  to  issue  to  the  marshal  or  any 
competent  person,  to  unlade  the  cargo,  and  to  make 
a  true  and  perfect  inventory  thereof;  and  at  the 

'  The  London  Packet,  2  Wheat.,  371  ;  The  Magnus,  1  Rob.,  31 ; 
The  Diana,  2  Gall.,  93. 

»  The  Liveiyool  Packet,  1  Gall.,  51 3 ;  The  Carl  Walter,  4  Rob., 
207;  The  Richmond,  5  Rob.,  325;  The  Jonge  Margaretha,  1 
Rob.,  189;  The  Oster  Risoer,  4  Rob.,  199;  The  Hoffnung,  6 
Rob.,  231;   The  Prosper,  Edw.,  62. 


430  JUDICIAL    OEDEES   PENDENTE   LITE. 

same  time  a  commission  is  directed  to  some  compe- 
tent persons,  wlio  are  required,  upon  oatli,  to  ap- 
praise tlie  cargo  according  to  its  true  value ;  and 
wliere  the  object  is  to  ascertain  the  nature  and 
quality  of  the  cargo,  these  persons  are  required  to 
return  an  inventory  thereof,  with  a  certificate  of 
the  j)articulars,  names,  descriptions,  and  assortments 
of  goods,  with  their  marks  and  numbers,  and  the 
nature,  use,  quantities,  and  qualities  thereof.^ 

Removal  of        •pjjg  court  may  also,  in  the  exercise  of  its  2:en- 

slup  or  cargo,  .  .  . 

or  both.         eral  guardianship,  order  a  removal  of  ship  or  cargo 

or  both,  to  another  place  or  port ;  and  in  such  case, 

a  commission  of  removal  is  issued,  directed  either  to 

the  marshal,  or  to  such  other  person  as  the  court 

may  appoint.^ 

Expense  of  un-      The  cxpcuses  incident  to  the  unlivery  of  the 

movai,  by  ^^    cai'go,  or  the  removal  of  ship  and  cargo,  being  for 

whom  borne.   ^|^g   benefit   of  all   parties,  are   usually  borne   by 

the   prevailing   party.      If  the   captors  apply  for 

the  unlivery,  and  the  property  is  condemned,  they 

bear  the  exj^ense;   but  if  restitution  be  decreed, 

the  expense  is  generally  made  a  charge  upon  the 

cargo — but  this  is  always  in  the  discretion  of  the 

court.^ 


Order  of  sale  After  the  Unlivery  and  appraisement,  the  court 
erty,  andTiow  somctimes  ordcrs  a  sale  of  the  property,  whether 
effected.         g|j|p  q^,  c^rgo,  and  this  is  done  where  they  are  in 


'  Marriott's  Forms,  224. 

^Marriott's  Forms,  234;  The  Eendsberg,  6  Rob.,  142;    The 
Sacra  Familia,  5  Rob.,  360. 
"  The  Industrie,  5  Rob.,  88. 


JUDICIAL    ORDEES   PEISTDENTE   LITE.  431 

in  a  perishing  condition,  or  liable  to  deterioration 
pending  the  process.^ 

This  is  done  by  a  commission  of  appraisement 
and  sale,  issued  to  such  competent  persons  as  the 
court  may  appoint,  directing  them  to  choose  ap- 
praisers, to  appraise  the  same  on  oath,  and  there-  • 
afterward  to  expose  the  same  to  public  sale,  and 
bring  the  proceeds  into  the  registry  of  the  court.  By 
the  practice  in  the  courts  of  the  United  States,  a-sale 
is  sometimes  ordered  without  a  previous  appraise- 
ment, but  when  appraised,  the  appraisers  are  always 
appointed  by  the  court.  In  England,  it  is  the  prac- 
tice of  the  court  to  allow  the  claimants  to'  select  one 
of  the  commissioners  of  appraisement  and  sale.^ 

The  expense  of  this  proceeding  is,  in  the  first  in-  Expense  of 
stance,  borne  by  the  party  applying  for  it,  and  ulti-  defrayed!^  °™ 
mately  as  the  court  may  decree.  In  the  United 
States,  the  sale  itself  is  in  all  cases  made  by  the 
marshal,  and  such'  is  usually  the  case  in  England, 
but  the  court  may  direct  it  to  be  made  by  any 
other  person.  The  regular  practice  of  the  prize 
court  is  to  have  a  previous  inventory  and  appraise- 
ment; and  obvious  reasons  of  public  policy  to 
check  fraud  and  fi^  responsibility  on  the  oflicers 
of  the  court,  require  an  adherence  to  that  rule. 

The  court,  in  the  exercise  of  its  discretionary  Delivery  of  the 
power,  after  a  hearing  in  the  first  instance,  orders  baiuo  the  cap- 
a  delivery  of  the  property  on  bail,  either  to  cap-  ^^'j.g  °^  '^^^^' 

'  The  St.  Lawrence,  1  Gall.,  467  ;  The  Frances,  1  Gall.,  451  ; 
Jeiinings  vs.  Carson,  4  Cranch,  2  ;  Stoddart  vs.  Read,  2  DalL,  40  ; 
The  Copenhagen,  3  Rob.,  178;  Marriott's  Forms,  237,  318. 

2  The  Carl  Walter,  4  Rob.,  207,  211  ;  The  Rendsherg,  6  Rob., 
142. 


432  JUDICIAL    OEDEES   PENDENTE    LITE. 

tors  or  to  tlie  claimants,  according  to  the  circnm- 
stance*)  as  tliey  are  developed.  We  have  seen  in 
what  cases  the  court  will  allow  an  application  for 
such  delivery  to  be  made  to  the  claimants,  and  in 
what  cases  to  the  captors. 

The  bail  required  in  such  cases,  is  a  stipulation 
for  the  return  of  the  property,  or  its  full  value,  to 
abide  the  decree;  and  ordinarily,  the  court  insti- 
tutes an  inquiry  into  the  value,  and  the  order  is 
made  pui^suant  thereto.  The  sm-eties  in  such  stip- 
ulation are  re5j)onsible  only  for  the  amount  of  their 
stipulation;  but  the  principal  is  holden  for  the 
value  of  the  property,  though  it  exceed  the  sum 
named  in  the  stipulation.  The  delivery  is  usually 
made  on  bail,  at  an  appraised  value;  in  which 
case,  both  principal  and  sureties  are  bound  in  that 
sum  and  no  farther.^ 

But  their  liability  cannot  be  reduced  on  an  ap- 
plication to  diminish  it  to  the  sum  which  the  prop- 
erty actually  produced  at  a  subsequent  sale.^ 

The  expenses  incident  to  a  delivery  on  bail,  are 
borne  by  the  delivering  party,  unless  the  court 
otherwise  direct,  but  usually  the  direction  is,  that 
the  party  who  applies  for  the  delivery  on  bail  shall 
bear  the  expenses;  and  all  subsequent  expenses 
after  its  delivery  are  borne  by  the  party  receiving 
the  property.^ 
stipulations  Stipulations  to  answer  adjudication,  given  in  a 
thereon. '  ^^  prize  court,  are  not  regarded  as  mere  personal  secu- 
rities for  the  benefit  of  the  parties,  as  such  bonds 


>  The  Alligator,  1  Gall.,  145. 

"^  The  Betsy,  5  Hob.,  295;  and  note  (a),  296. 

*  The  last  case  cited,  and  The  Rendsherg,  6  Rob.,  142. 


JUDICIAL    OEDEES   PENDENTE   LITE.  433 

are  viewed  in  the  common  law  courts.  They  are 
considered  securities  given  to  the  court  itself — 
pledges  or  substitutes  for  tlie  thing,  in  all  points 
fairly  in  adjudication  before  the  court.  They  are 
not  discharged  by  lapse  of  time,  but  may  be  en- 
forced by  the  court  at  any  time,  and  although  the 
stipulation  be  given  to  the  captors,  the  bail  may  be 
answerable  in  the  admiralty  to  the  government,  if 
it  should  so  result,  fi'om  any  circumstances,  that  the 
property  is  condemned  to  the  government.  But  if, 
at  the  time  of  the  capture  and  delivery  on  bail,  the 
property  was  neutral,  and  by  reason  of  the  subse- 
quent intervention  of  hostilities  with  the  neutral 
power  condemnation  is  made  to  the  government, 
the  stipulation  would  not  in  such  case  be  enforced, 
because  such  an  event  was  not  in  the  contemj^lation 
of  the  parties  when  they  entered  into  it.  This  is 
the  English  doctrine,  but,  although  not  j)assed  upon 
by  the  courts  of  the  United  States,  Judge  Stoiy 
seems  to  doubt  its  correctness :  "  For,"  says  he, 
"  the  bail  bond  being  a  substitute  for  the  proj)erty 
itself,  there  does  not  seem  any  very  conclusive  rea- 
son why  it  should  not  be  subject  to  all  the  events 
which  would  have  aifected  the  pi'operty,  if  still  in 
the  custody  of  the  coui't." 

On  an  appeal,  the  property  follows  the  appeal  Appeal  from 
into  the  appellate  court. 

In  the  United  States,  when  an  appeal  is  made  to  its  effect  on 
the  Circuit  from  the  District  Court,  the  property  or^contrd Jf'^ 
goes  into  the  Cu'cuit  Court,  and  is  no  longer  subject  tt^e  prize  prop- 
to  the  interlocutory  orders  of  the  District  Court. 
It  is  not  so,  however,  on  an  appeal  from  the  Circuit 
Court  to  the  Supreme  Court  of  the  United  States, 

28 


4:34  JUDICIAL    OEDEES   PENDENTE   LITE. 

for  the  decrees  of  tlie  latter  are  always  sent  to  tte 
Circuit  Court  for  execution,  and  therefore  the  prop- 
'  erty  always  remains  in  the  latter  court,  notwith- 

standing the  appeal. 


PRACTICE   AND   PEOCEEDINGS    OF    PEIZE-COUETS.  435. 


FURTHEE  CONSIDERATION  OF  THE  PRAC- 
TICE AND  PROCEEDINGS  OF  PRIZE- 
COURTS,  SUGGESTED  BY  THE  ADJU- 
DICATIONS UPON  CAPTURES  MADE 
DURING  THE  EXISTING  WAR  IN  THE 
UNITED  STATES. 

[The  beUigerent  riglit  of  the  United  States  to  in- 
terdict all  commerce  with  the  insurgents,  by  a 
blockade  of  the  ports  in  their  occupation,  has  been 
maintained  by  its  naval  forces,  in  superaddition  to 
its  other  duties,  with  a  noiseless  but  incessant  and 
efficient  activity,  and  the  large  number  of  naval 
captures  that  have  been  made,  of  property  employed 
in  the  violation,  or  attempted  violation  of  this  bel- 
ligerent rio;ht,  have  called  into  active  exercise,  for 
the  past  eighteen  months,  the  prize  jurisdiction  of 
the  federal  courts  of  the  country. 

In  the  adjudications  upon  these  captures,  apart 
from  the  great  questions  of  high  political  import 
which  were  considered  and  determined,  many  im- 
portant subjects,  connected  with  the  practice  and 
proceedings,  in  the  administration  of  the  law  of 
maritime  captui^e,  have  been  authoritatively  ad- 
judged. A  brief  review  of  these  discussions  will 
make  a  proper  and  desirable  supplement  to  the 
foregoing  chapter. 


436 


THE    DUTY    OF    CAPTORS. 


THE  DUTY  OF  CAPTOES. 


The  duty  of 
captors. 


As  to  the  prop- 
erty captured. 


Exceptions  to 
the  rule  re- 
quiring it  to 
be  sent  in  for 
adjudication. 


Physical  im- 
possibility. 


Exception 
arising  from 
moral  re- 
straint. 


Tlie  rule  wliicli  declares  it  to  be  tlie  duty  of 
captors,  as  soon  as  possible  after  the  completion  of 
tlie  capture,  to  send  the  captured  property  into  some 
convenient  port,  for  adjudication,  like  all  general 
rules,  admits  of  exceptions,  in  extreme  cases,  either 
of  physical  necessity,  or  of  overruling  moral  influ- 
ences. 

The  exception  arising  out  of  physical  necessity, 
is  illustrated  by  the  cases  where  the  property  cap- 
tured is  a  long  distance  from  any  port  of  the  cap- 
tor's country,  is  in  a  perishing  condition,  and  either 
the  captors  have  no  means  of  sending  it  in,  or  if 
they  have,  it  is  obvious  that  it  would  be  of  no 
value  on  its  arrival.  In  such  case,  it  may  undoubt- 
edly be  sold,  and  the  proceeds  of  the  sale  repre- 
senting the  property,  will  become  thereafter  the  res 
on  which  the  prize-court  acts,  in  its  adjudication. 

So  too,  an  overruling  moral  restraint,  may  pre- 
sent a  sufficient  ground  of  relaxation  of  the  rule 
which  requii-es  adjudication  upon  the  property 
itself 

This  occurred  in  the  case  of  The  British  Empire^ 
captured  on  the  coast  of  Florida,  near  St.  Augustine, 
which  was  in  possession  of  the  naval  forces  of  the 
Government  of  the  United  States. 

The  cargo  of  the  vessel  consisted  mainly  of  articles 
of  household  consumption,  and  the  public  authori- 
ties of  the  town,  presented  a  petition  to  the  com 
mander  of  the  capturing  vessel,  representing  m 
strong  terms  the  famishing  condition  of  the  inhabi- 
tants of  the  town,  for  the  want  of  many  of  the 


THE   DUTY    OF    CAPTOES.  437 

articles  contained  in  the  cargo,  that  they  possessed 
the  means  of  paying  for  the  same,  and  beseeching 
the  commander,  as  an  act  of  humanity,  that  he 
would  order  such  ]3ortion  of  the  cargo  to  be  sold 
at  auction,  in  the  public  mart  of  the  place.  This 
petition  was  complied  with  by  the  commander,  the 
remainder  of  the  cargo  was  sent  to  the  port  of 
New  York  for  adjudication,  and  the  proceedings  in 
the  court  of  that  district  were  against  the  cargo 
sent  in,  and  the  proceeds  of  the  cargo  sold. 

The  learned  judge,  in  his  decree,  while  sustaining 
the  action  of  the  captors,  under  the  peculiar  circum- 
stances of  this  case,  nevertheless  declares  the  neces- 
sity of  a  strict  adherence  to  the  rule,  as  founded  in 
a  positive  neutral  right,  and  therefore  of  a  most 
careful  scrutiny  into  such  cases  as  are  claimed  to 
present  justifiable  cause  for  its  infi'action. 

The  necessity  of  the  captors  for  the  use  of  the  Excuse  ansmg 
captured  property,  in  whole  or  in  part,  constitutes  ce*sSty  Inhe 
another  exception  to  the  rule,  which  requires  the  ^'^P'^ors. 
property  itself  to  be  sent  in  for  adjudication. 

This  necessity  may  be  either  that  of  the  indi- 
vidual captors  themselves,  as  where  the  captured 
proj)erty  consists  of  provisions  or  supplies,  actually 
required  for  the  immediate  use  of  the  capturing 
vessel,  or  others  with  her  in  the  service,  oi-  it  may 
be  more  directly  the  necessity  of  the  captors'  govern- 
ment, as  where  the  captured  property  consists  of 
arms,  ammunition,  or  of  vessels,  of  the  character 
required,  for  the  use  of  the  government,  in  the 
prosecution  of  the  war. 

'  In  all  such  cases,  the  commander  of  the  capturing  captured 
vessel,  or  the  Admiral  of  the  fleet,  must,  of  course,  FoTKS  m^"" 
be  the  indole  of  the  existence  of  the  necessity :  and,  ^^^  capturing 

''       '=>  u  '  /  vessel  or  the 


488 


THE   DUTY    OF    CAPTORS. 


government.    {^  everv  sucli  case,  it  is  the  imperative  duty  of  tlie 

must  be  ap-  "^         .  .  ,  •    x  •  -  xi 

praised  before  captoTS,  prior  to  such  appropriation,  to  cause  tne 
appropriation,  pj-^pg^^y  whicli  is  to  be  taken,  to  be  appraised  by 
a  competent  naval  board  of  survey  and  appraise- 
ment, ajDpointed  for  that  purpose. 

This  rule  of  appraisement  not  only  rests  upon 
the  right  of  neutral  claimants,  but  without  such  ap- 
praisement the  individual  captors  themselves  lose 
all  benefit  resulting  from  the  capture  by  judicial 
decree. 
The  amount  An  appraisement  of  captured  property,  appro- 
deemecrtS'be  pi'latcd  to  the  usc  of  the  government,  in  the  prose- 
uvy^^  ^^^^^'  cution  of  the  war,  whether  before  or  after  it  has  been 
sent  in  for  adjudication,  is  considered  by  the  courts 
as  standing  in  the  place  of  the  property  or  its  pro- 
ceeds ;  and  the  amount  of  such  appraisement  is 
deemed  to  be  in  the  treasury  of  the  government, 
subject  to  a  final  decree  of  distribution  or  restitu- 
tion, in  like  manner  as  if  the  property  had  been 
sold  on  interlocutory  order,  and  the  proceeds  depos- 
ited in  the  treasury.  Without  such  appraisement, 
the  court  is  in  possession  of  nothing  upon  which  to 
base  its  proceedings  for  adjudication. 

In  some  instances  of  the  appropriation  of  cap- 
tured property,  consisting  of  arms,  ammunition,  &c. 
and  of  steamers  suitable  to  be  converted  into  ves- 
sels of  war,  the  government  of  the  United  States 
has  paid  the  amount  of  the  appraisal  to  the  order 
of  the  court,  before  adjudication,  and  upon  the 
delivery  of  the  property  to  the  proper  oflicer  of  the 
government.  There  is  no  reason  for  such  a  practice, 
nor  is  there  any  rule  requiring  it.  The  amount 
fixed  by  the  appraisal,  is  deemed  to  be  in  the  treas- 
ury, subject    to   the   orders   and    decrees   of   the 


No  rule  re- 
quiring: its 
payment  by 
the  govern- 
ment, before 
final  decree. 


THE   DUTY   OF    CAPTOES.  439 

court,  from  the  date  of  the  appropriation  of  the 
property. 

The  rules  and  practice,  as  above  recited,  are  laid 
down  in  numerous  cases  of  recent  adjudication,  in 
the  United  States  District  Court  for  the  District  of 
New  York.^ 

The  general  rule  in  relation  to  the  duty  of  cap- P^tJ  of  cap- 

O  Till  ^^  *    ® 

tors  toward  the  persons  captured  on  board  the  persons  taken 
vessels  taken,  is  to  send  them  in  wdth  the  prize,  as  JJ^red  prop^^" 
witnesses  in  the  proceedings  in  adjudication.  ®'''^^- 

Except  where  they  are  very  numerous,  it  is  the 
safer  rule  to  send  all  the  captured  persons  into  the 
port  of  adjudication ;  but  in  no  case  should  the 
captors  fail  to  send  in  the  master  and  principal  General  rule 

J,  AT  ^  1  Ar»M  iT,!'     to  send  them 

omcers  of  the  captured  vessel.     A  tailure  to  do  this,  in  with  the 
can  only  be  excused  in  a  case  of  physical  impossi-  neSs^^  ^^" 
bility,  not  occasioned  by  any  agency  of  the  captors, 
and  on  the  part  of  a  private  armed  vessel  would 
involve  a  forfeiture  of  the  rights  of  prize. 

In  the  case  of  The  Julia,  in  the  United  States  Overpowering 

-i-\-        •        /~\  r»-n/r  1  11  I'l        necessity  the 

District  Court  lor  Massachusetts,  the  learned  judge  only  excuse 
took  occasion  to  comment  upon  a  failure,  without  (;°^iQpiy'^[ty° 
adequate  excuse,  to  comply  with  this  established  ^^^^  ^'^®- 
rule  of  prize-courts,  as  follows  : 

"  The  prize  law  requires  the  captors  to  send  in 
the  master  <?f  the  prize,  as  a  witness.  The  failure 
to  do  this,  unless  for  some  overpowering  necessity,  is, 
in  the  case  of  neutral  vessels,  a  serious  fault.  In  the 
present  case,  the  testimony  of  the  master  would  be 

'  The  Memphis,  The  Stephen  Hart,  The  EUzaheth,  The  Pafrus, 
The  Jos.  IT.  Toon,  The  Ezilda,  The  J.  W.  Wilder,  The  Ellis  and 
Armament,  and  nine  other  vessels.  The  Henri/  Lewis,  The  Anna, 
The  Nostra  Signora  de  Regla,  The  Mannnlia,  The  Circassian, 
The  Nassau,  The  Ella  Warlcij.     MS.  Dccis.  U.  S.  Dist.  Ct.,  N.  Y. 


4^0  THE   DUTY    OF    CAPTOES. 

most  material,  yet  lie  was  not  sent  in.  To  account 
for  tMs,  I  allowed  tlie  United  States  Attorney  to 
take  '  further  proof,'  and  tlie  deposition  of  the  com- 
mander of  the  Cambridge,  who  made  the  capture, 
has  been  taken.  From  this  deposition,  it  appears 
that  it  was  as  easy  to  send. in  the  master  as  the  sea- 
men, yet  the  master  was  sent  ashore  at  Fortress  Mon- 
roe, and  nothing  has  been  heard  of  him  since,  while 
the  men  sent  in  as  witnesses,  knew  little  or  nothing, 
and  could  not  be  expected  to  know  niuch,  about 
the  actual  o^vnership,  papers,  instructions  and  ob- 
jects of  the  vessel  and  voyage. 

"  The  commander  justified  his  failure  in  this 
respect,  by  the  language  of  the  circular  instructions 
sent  to  him,'  which  are  to  send  in  '  two  of  the  cap- 
tured crew.'  He  certainly  has  not  transgressed 
the  letter  of  his  instructions  ;  but  the  instructions 
should  have  been  more  explicit.  They  should  have 
required  the  sending  in  of  the  master  in  all  cases,  if 
possible.  But  whether  the  fault  rests  with  the 
captor,  the  flag  officer  of  the  squadron,  or  the  de- 
partment, the  rights  of  neutrals  are  the  same. 

"  I  do  not  feel  authorized  to  condemn  a  vessel 
and  cargo,  sailing  under  British  flag  and  documents, 
of  British  build,  and  on  her  papers,  owned  by  Brit- 
ish subjects,  on  such  suspicions  as  appear  in  this 
case,  where  the  captors  have  failed,  without  any 
excuse,  to  send  in  the  master  as  a  witness. 

Captured  per-  The  captured  persons  sent  in  as  witnesses,  should 
eeparated  not  be  Separated  from  the  captured  property,  un- 
from.buttobe]  gg  this  is  deemed  necessary  for  its  safe  transmis- 

sent  m  witn  J 

the  prize.       sion  to  the  port  of  adjudication. 

The    violation  of  this    rule,   without    apparent 


THE    DUTY    OF    CAPTOES.  44  J 

necessity,  lias  occasioned  miicli  emljarrassment,  in- 
convenience and  delay  in  the  recent  adjudications, 
and  the  courts  have  animadverted  upon  such  mis- 
feasance of  naval  officers,  with  much  severity.-^ 

In  numerous  cases  of  capture,  adjudicated  in  the  where  crew 
United  States  Court  in  New  York,  it  was  made  to  ap-  vessd^escape, 
pear  that  the  persons  belonej-ina;  to  the  captured  ves-?*^^*^^^'^'^'d^Pf" 

^  ,  ■■■  ,  o      o  1  ^  tory  proof  al- 

sel,  without  exception,  had  escaped  from  her,  prior  to  lowed. 
the  captui^e,  and  could  not  afterward  be  procured. 

In  all  such  cases,  the  otherwise  inflexible  nilo, 
which  requires  the  testimony  for  condemnation  to 
proceed,  in  the  first  instance,  from  the  persons  taken 
on  board  the  prize,  has  been  relaxed,  and  the  cap- 
tors have  been  j^ermitted  to  supply  inculpatory 
proofs  fi'om  other  sources.^ 

In  some  instances,  naval  captors  during  the  ex- 
isting war  in  the  United    States,  have  subjected 
persons  captured  on  board  vessels  seized  for  a  vio- 
lation of  the  blockade,  to  such  treatment  as  would 
be  only  justifiable  toward  prisoners  of  war.     This  Personal  treat- 
must  have  have  arisen  from  a  singular  misapprehen-j^^gjp^gjgj^ 
sion.     The  penalty,  and  the  sole  penalty,  for  this  vio- 
lation of  the  belligerent  right,  is  the  forfeiture  of  the 
property  employed  in  it.     The  persons  engage/1  in  Detained  as 
it  cannot  be  lawfully  treated  as  prisoners,  nor  can  Ts^prlsonerr* 
they  be  detained  as  prisoners,  but  only  as  witnesses.  °^  ^■''^• 

Until  they  have  given  their  testimony,  they  may 

'  Vide  The  Shark,  The  Cheshire,  Louisa  Agnes.  MS.  decis.  U. 
S.  Dist.  Court,  New  York.  The  Julia.  MS.  decis.  U.  S.  Dist. 
Court,  Mass. 

'  yide  The  Actor,  The  Ellin,  and  nine  other  vessels.  The  A. 
J.  Vieu,  The  Delight,  The  Express,  The  Osceola,  The  Olive,  The 
Cnpt.  Sneddon.     MS.  decis.  U.  S.  Dist.  Court,  New  York. 


442  THE   DUTY    OF    CAPTOES. 

and  should  be  detained,  and  detained  in  sucli  man- 
ner as  to  exclude  the  possibility  of  their  being  tam- 
pered with  by  interested  parties.  -After  they  have 
testified,  they  should  be  forthwith  discharged  from 
custody. 

A  practice  has  prevailed  in  some,  if  not  all  the 
courts  of  the  United  States,  of  allowing  and  paying 
tlie  persons  sent  in  as  witnesses,  a  compensation  for 
their  detention. 

It  is  believed  that  no  precedent  can  be  found  for 
tliis  practice. 
The  Louisa         In  the  case  of  The  Louisa  Agnes ^  the  learned 
of^trictcourt^  judge  of  the  Federal  Court,  in  New  York,  com- 
New  York.     jji(3j2ted  at  somc  length  uj^on  the  duty  of  captors 
toward  the  persons  ca]3tured,  generally,  as  well  as 
in  the  several  particulars,  which  have  been  stated, 
and   also  took  occasion   to   lay  down  the   proper 
course  to  be  pursued  in  all  cases  where  redress  is 
claimed  by  reason  of  alleged  misfeasance,  or  mal- 
feasance of  naval  officers. 

The  language  of  the  learned  judge  upon  this  im- 
portant subject,  is  so  instructive  in  its  lessons,  and 
valuable  in  suggestion,  that  it  would  not  be  proper 
to  omit  it  in  this  connection ;  but  it  is  well  to 
state,  and  justice  toward  the  naval  captors  re- 
quires the  statement,  that  the  elaborate  averments 
of  ill  treatment  in  this,  as  well  as  in  numerous 
other  cases,  were  wholly  unsustained  by  any  proof 
whatever,  and  seem  to  have  been  interposed  more 
for  the  purpose  of  creating  an  unfounded  prejudice, 
than  in  any  expectation  of  supporting  them  by 
.     evidence. 

"  The  affidavit  of  the  master  of  the  vessel,  attached 
to  the  several  claims  in  this  case,"  says  the  learned 


THE   DUTY    OF    CAPTOES.  443 

judge,  "  was  insisted  upon  by  each  claimant  as  le- 
gal proof  in  his  behalf. 

"It  made  allegations  of  misconduct  committed  The  case  of 

1        .  ■]  .       .  -,  ,  1  1  •    1  '^^^  Louisa 

by  the  capturmg  vessel  upon  the  ship  s  company  Agnes,  u.  s. 
of  the  prize  vessel,  after  her  seizure ;  that  the  mas-  New  York!''^*' 
ter  and  two  of  his  crew  ^vere  separated  fi-om  the 
prize,  and  sent  without  her,  to  their  serious  incon- 
venience and  wrong,  to  Baltimore,  and  thence  by 
rail  to  New  York,  and  that  the  writing-desk  of  the 
master  was  improperly  opened  on  board  the  United 
States  ship-of-war,  while  he  was  there  detained,  and 
that  papers  were  abstracted  from  it  by  the  captors, 
and  that  two  of  the  seamen  on  the  prize  were  placed 
in  irons,  and  sent  with  her  so  ironed  to  New  York 
by  the  captors.  These  allegations  are  not  admitted 
by  the  libellants,  or  otherwise  established  by  direct 
proof  on  the  part  of  the  claimants. 

"This  alleged  misconduct  has  been  urged  as  a 
conclusive  defence  to  this  suit,  with  the  allegation 
that  several  causes,  in  addition  to  the  present  one, 
are  still  waiting  the  consideration  of  the  court,  in 
which  that  cause  of  defence  is  more  flagrant,  and 
strenuous  appeals  are  addressed  to  the  court  to  re- 
dress the  wrongs  and  losses  inflicted  upon  neutrals, 
by  the  course  of  conduct  pursued  during  the  present 
war  by  national  vessels,  in  the  assumed  enforcement 
of  the  law  of  blockade.  The  court  will  indulge  in 
no  general  denunciation  or  stigma  of  the  supposed 
malfeasances  of  public  vessels  in  the  performance  of 
their  duties  in  relation  to  prizes,  but  will  carefully 
examine  the  facts  brought  to  its  attention,  and  en- 
deavor to  uphold  and  enforce  with  strict  justice,  the 
legal  rights  and  responsibilities  of  all  parties  impli- 
cated in  prize  proceedings  brought  before  the  court. 


444  THE   DUTY    OF    CAPT0R8. 

It  is  to  be  presumed  that  the  officers  and  crews  of 
the  navy  are  disposed  to  conduct  themselves  in  obe- 
dience to  their  instructions  and  to  the  rules  of  mari- 
time law,  in  executing  their  war  powers  in  making 
prizes  ;  and  the  rules  and  practice  of  prize-courts 
fix  their  responsibilities,  and  the  manner  those  are 
to  be  enforced,  in  case  injuries  are  sustained  from 
misconduct  on  their  part,  whether  the  capture  is 
sanctioned  and  carried  into  effect  by  the  court,  or  is 
declared  nugatory  and  unjustifiable. 

"  The  pleadings  in  a  prize  action  involve  directly 
no  further  question  than  that  of  prize.  {The  Ade- 
laide^ 9  Cranch,  284;  Tlie  Fortwna^  1  Dods.,  82, 
83.)  The  parties  on  the  trial  of  that  issue  are  not 
legally  required,  if  they  may  be  permitted,  to  litigate 
any  other  point  than  that  and  the  probable  sequents 
to^it.  In  a  qualified  sense,  the  consideration  whether 
the  unlawful  acts  of  private  captors  after  the  seizure 
of  property  as  prize,  do  not  render  the  arrest  of  it 
void,  may  be  regarded  as  characterizing  vitally  the 
capture,  and  thus  become  intrinsically  admissible 
evidence  in  defence,  against  the  conviction  and  for- 
feiture of  the  property ;  but  yet  that  ground  of  de- 
fence n«ed  not  be  directly  connected  with  the  cap- 
ture itself,  or  its  liability  to  capture  as  prize,  but 
may,  and  most  probably  will,  spring  out  of"  facts 
wholly  disconnected  with  either  of  those  particulars. 

"  The  general  rule  in  respect  to  captures  by  pub- 
lic ships  is,  that  the  actual  wrong-doer  alone  is 
responsible  for  any  wrong  done,  or  illegally  com- 
mitted on  the  prize,  excepting  acts  done  by  mem- 
bers of  the  seizing  vessel  in  obedience  to  the  orders 
of  their  superiors.  ( J'Ae  J/ew.tor,  1  Kob.,  151 ;  Tlie 
Diligentia,  1  Dods.,  404;  2  Wheat.,  13.)    The  lia- 


THE   DUTY    OF   CAPTOES.  445 

bility  of  the  officer  is  not  constructive,  and  affixed 
to  him  solely  on  account  of  his  superiority  of  com- 
mand, but  arises  from  his  immediate  command  or 
authority  in  the  transaction.  (^The  Eleanor^  2 
Wheat.,  345.)  Embezzlements  of  the  cargo  seized, 
or  acts  personally  violent,  or  injuries  perpetrated 
upon  the  captured  crew,  or  improperly  separating 
them  from  the  prize-vessel,  or  not  producing  them 
for  examination  before  the  prize-court,  or  other 
torts  injui'ious  to  the  rights  or  health  of  the  prison- 
ers, may  render  the  arrest  of  a  vessel  or  cargo,  as 
prize,  defeasible,  and  also  subject  the  tort  feasors 
to  damao;es  therefor ;  but  the  law  does  not  consti- 
tute  those  acts  or  omissions  legal  bars  to  the  suit ; 
and  it  is  plain  that  the  course  of  investigation  into 
those  matters,  would  not  naturally  be  anticipated 
from  the  shape  of  a  prize  suit,  nor  could  they  be 
inquired  into  with  that  fulness  befitting  the  gravity 
of  the  imputations,  or  their  importance  to  the  pub- 
lic service,  or  the  rights  of  individuals,  so  well  and 
satisfactorily,  in  summary  and  incidental  proceed- 
ings, as  in  actions  founded  directly  upon  the  in- 
juries complained  of. 

"  The  practice  of  prize-courts  supplies  a  course  of 
procedure  under  claims  for  redress  in  cases  of  that  de- 
scription, which  seems  more  proper  to  l)e  pursued 
against  public  ships,  when  the  consequences  may  also 
lead  to  other  results  than  an  award  of  pecuniary  com- 
pensation to  parties  complaining  of  wrongs  done 
them.  A  monition  may  be  directed  to  those 
using  the  authority  of  the  government,  in  seizing 
property  at  sea,  compelling  them  to  respond  before 
the  court,  to  parties  aggrieved  by  their  acts,  for 
every  wi-ongful  use  of  the  authority  confided  to 


446  THE   DUTY    OF   CAPTOES. 

them ;  and  that  by  pleas  and  allegations,  the  spe- 
cial grievances  will  be  specifically  charged  and  con- 
tested before  the  court,  and  the  evidence  pertinent 
to  the  contestation  can  thus  be  collated  and  laid 
before  the  court  on  both  sides  {Tlie  Eleanor^  2 
Wheat.,  345  ;  The  Magnus^  1  Kob.,  27);  merely  in- 
terposing a  statement  of  grievances  by  way  of 
schedule  attached  to  the  claim  of  ownership  and 
test  oath,  which  enables  a  party  to  contest  a  libel 
of  information  in  a  prize  suit,  is  not  placing  the 
controversy  before  the  court  in  that  authoritative 
shape,  that  parties  are  at  once  compellable  to  treat 
the  allegations  and  suggestions  as  in  litigation 
thereupon.  It  may  well  afford  foundation  for  either 
party  to  appeal  to  the  discretion  of  the  court,  to  pro- 
ceed and  render  justice  in  the  matter  summarily,  in 
exercise  of  that  pervading  jurisdiction  which  envel- 
opes prize  proceedings ;  but  when  there  is  reason- 
ble  cause  to  look  for  a  more  thorough  representation 
of  the  occurrences  referred  to,  than  will  commonly 
be  obtained  from  ex  parte  statements,  given  under 
impressions  likely  to  be  colored  by  the  excitement 
of  sudden  capture,  and  the  risks  and  inconveniences 
following  it,  I  consider  it  the  more  reliable  course 
of  practice,  to  require  the  evidence  to  be  furnished 
under  pleas  and  allegations,  when  it  is  offered  in 
bar  of  the  rightfulness  of  a  capture  as  prize,  or  as 
foundation  for  an  award  of  compensation  in  dam- 
ages, because  of  irregularities  or  culpabilities  of 
captors  who  are  in  the  public  service,  in  making 
the  seizure,  or  dealing  with  the  prize  property  while 
in  their  possession. 

"In    Tlie   Magnus,  Sir  Wm.  Scott  says:   'The 
proof  required  was  of  the  most  solemn  nature,  by 


THE   DUTY   OF    CAPTOES.  447 

plea  and  proof.'  (1  Eob.,  28.)  The  proceedings 
by  plea  and  allegations,  admonisL  the  parties  of  the 
difficulties  of  their  situation,  and  call  for  all  the 
proofs  their  case  can  supply.  (Wheat,  on  Capt.,  284.) 

"  It  is  to  be  remarked  in  this  case  that  no  evi- 
dence has  been  given  on  the  examination  inprepar- 
atorio^  or  upon  the  papers  of  the  vessel,  showing 
any  unlawful  or  irregular  conduct  of  the  captors  in 
making  the  prize,  or  the  subsequent  treatment  of 
her  crew,  or  the  property  arrested.  The  affidavit 
of  the  master,  referred  to  as  a  part'  of  their  claim 
by  the  claimants,  is  extra  judicial,  and  not  testi- 
mony in  the  cause ;  and  if  allowed  by  the  court  as 
notice  to  the  libellants,  of  charges  impeaching  the 
legality  of  the  capture,  cannot  avail  as  testimony  in 
the  suit  on  hearing.  The  like  evidence  was  not 
permitted  to  have  that  effect  in  the  case  of  the  Jane 
Campbell.  It  was  there  only  recognized  as  a  basis 
for  after  summary  proceedings,  to  establish  the 
justness  of  the  allegations  under  the  implied  re- 
serve that  it  could  not,  per  se,  sustain  a  decree 
against  the  captors  for  torts. 

"  Two  notes  in  the  log-book,  apparently  entered 
by  the  prize-master  after  the  aiTest  of  the  schooner, 
state  that  he  placed  the  mate  and  steward  in  irons 
on  taking  command  of  the  vessel,  and  in  the  after- 
noon took  the  irons  off  for  the  day,  replacing  them 
for  the  night,  and  next  morning  again  removing 
them,  alleging  it  to  be  discretionary  with  him  to  keep 
the  men  in  irons  day  and  night.  No .  allusion  to 
the  Occurrence  is  made  by  the  men,  on  their  exam- 
ination; and  in  such  posture  of  the  transaction,  the 
inference  may  be  no  stronger  that  the  act  was  tor- 
tious and  unjustifiable,  and  that  it  was  an  excusa- 


4J4:8  THE   DUTY    OF    CAPTOHS. 

ble  precaution  against  menaced  or  well-suspected 
refractoriness  of  tlie  prisoners.  It  is  manifest,  als<'^ 
tliat  separating  the  master  and  others  of  the  creA\ , 
and  not  bringing  them  with  the  prize  into  port,  and 
before  the  court,  was  not  necessarily  culpable  of 
itself,  and  may  have  been  justifiable  from  the  con- 
dition of  the  vessel,  or  that  of  the  crew. 

"The  government,  on  general  principles,  would 
not  be  debarred  from  vindicating  their  rights  under 
the  law  of  nations,  against  the  criminal  vessel  and 
cargo,  if  it  be  proved  that  the  captors,  after  making 
the  prize,  have,  on  their  part,  been  also  guilty  of 
iri'egular  and  culpable  conduct  toward  the  prize 
property  or  crew. 

"In  that  respect,  the  court  will  sedulously  ad- 
minister the  same  measure  of  relief  to  injured  par- 
ties against  captors  acting  in  the  public  service,  as 
are  supplied  by  the  law  in  relation  to  private 
cruisers.  Yet  there  may  be  reasonably  observed 
differences  in  the  method  of  enforcing  it,  because, 
in  the  case  of  public  vessels,  the  ship's  company 
are  subject  to  the  direction  and  authority  of  offi- 
cers outside  of  those  commanding  the  particular 
vessel  engaged  in  the  capture,  and  may  be  entitled 
by  law  to  exemptions  from  personal  responsibility, 
which  could  not  be  set  up  by  the  voluntary  wrong- 
doer. Besides,  the  act  for  the  better  government 
of  the  navy,  subjects  any  person  in  the  navy,  for 
misconduct  in  relation  to  prize  property,  to  forfeit- 
ure of  his  share  of  the  capture,  and  such  further 
punishment  as  the  prize-court  shall  impose.  (2 
Stats,  at  Large,  46,  §  8.)  In  such  cases,  it  seems  to 
me  there  is  a  special  fitness  in  requiring  that  the 
right  of  reclamation  of  damages  from  captors  in 


THE    DUTY    OF    CAPTOES.  449 

captures  made  by  public  vessels,  sliould  be  pursued 
by  the  parties  averring  tlie  grievance  and  tort 
committed  upon  tliem,  by  plea  and  proof,  wliich 
admit  of  counter  allegations,  and  full  evidence  un- 
der them.  This  will  be  the  course  of  practice  to 
be  hereafter  followed  in  like  cases,  unless  specially 
ordered  by  the  court." 

By  the  8th  section  of  the  act  of  Congress,  of  July 
17,  1862,  entitled  "An  act  for  the  better  govern-  ^ 
ment  of  the  navy  of  the  United  States,"  the  mal- 
treatment by  any  person  in  the  navy,  of  persons 
taken  on  board  a  prize,  is  made  punishable  by 
court-martial. 

The  inculpatory  proofs  in  a  case  of  maritime  cap- 
ture, must,  as  has  been  seen,  proceed,  in  the  first 
instance,  from  the  testimony  of  the  captured  per- 
sons, and  the  papers  of  the  vessel  found  on  board. 
It  is  therefore  the  duty  of  the  captors,  in  all  cases,  i^i'ty  of  cap- 
to   send   m  such   papers   and    documents,    books,  sei's  papers 
charts,  <fec.,  in  their  precise  condition  as  at  the  time  auhe  time°of 
of  capture,  so  that  the  prize-master,  in    delivering  ^-^pt"""®- 
them  to  the  commissioners,  may  identify  them  as 
such,  in  his  affidavit  made  to  that  end. 

But  there  may  be  other  papers  on  board  the  ves-  ^^  ^"  "'^^®/, 

•^        ^  i     Ji  papers,  not  bc- 

sel  which  are  not,  in  any  sense,  the  papers  of  the  ins  t-ho  ves- 
vessel,  and  which  may  contain  important  criminat-  '^  •  p  p  ^ 
ing  evidence. 

Such  papers  may  consist  of  letters,  under  private 
or  official  seal,  inclosed  in  a  mail  bag,  or  parcels  of 
like  description. 

In  explanation  of  the  duty  of  captors  with  regard 
to  such  papers,  as  well  as  their  duty  in  the  exer- 
cise of  the  right  of  visitation  and  search,  the  hon- 
29 


450  THE    DUTY    OF   CAPTORS. 

orable  Secretary  of  tlie  Navy  of  the  United  States 
issued  a  circular  of  instructions  to  naval  command- 
ers, on  the  18th  day  of  August,  1862.  Its  terms 
declare  not  only  the  special  and  particular,  but  the 
general  duties  of  naval  captors  in  these  respects.  It 
becomes,  therefore,  valuable  for  preservation  and 
reference,  in  this  connection. 

Circular  of  in-  "  ^^^^  Department,  Ancf.  1 8,  1862. 

structio*  in        a  g^j^     Some  receut  occurrences  in  the  capture  of 

this  respect  to  ^     ^  ■•• 

naval  com-      vesscls,  and  mattcTS  pertaining  to  the  blockade, 

manders,  from  ^        .  ,-i      ,    ,i  iiii 

the  United  render  it  necessary  that  there  should  be  a  recapitu- 
S?rjf^thT'  lation  of  the  instructions  heretofore  fi^om  time  to 
^^^-  time  given,  and  also  of  the  restrictions  and  precau- 

tions to  be  observed  by  our  squadrons  and  cruis- 
ers. It  is  essential,  in  the  remarkable  contest  now 
waging,  that  we  should  exercise  great  forbearance 
with  great  firmness,  and  manifest  to  the  world  that  it 
is  the  intention  of  our  government,  while  asserting 
and  maintaining  our  own  rights,  to  respect  and 
scrupulously  regard  the  rights  of  others.  It  is  in 
this  view  that  the  following  instructions  are  explic- 
itly given : 

^^  First :  That  you  will  exercise  constant  vigi- 
lance to  prevent  supplies  of  arms,  munitions  and 
contraband  of  war  fi'om  being  conveyed  to  the  insur- 
gents; but  that  under  no  circumstance  will  you  seize 
any  vessel  within  the  waters  of  a  fi'iendly  nation. 

'''' Second:  That,  while  diligently  exercising  the 
right  of  visitation  on  all  suspected  vessels,  you  are 
in  no  case  authorized  to  chase  and  tire  at  a  foreig-n 
vessel  without  showing  your  colors,  and  giving  her 
the  customary  preliminary  notice  of  a  desire  to 
speak  and  visit  her. 


THE    DUTY    OF    CAPTORS.  451 

Third:  That  when  that  visit  is  made,  the  vessel 
is  not  then  to  be  seized  without  a  search  carefully 
made,  so  far  as  to  render  it  reasonable  to  believe 
that  she  is  engaged  in  carrying  contraband  of  war 
'for  or  to  the  insurgents,  and  to  their  ports  directly, 
or  indirectly  by  transhipment,  or  otherwise  viola- 
ting the  blockade ;  and  that  if,  after  visitation  and 
search,  it  shall  appear  to  your  satisfaction  that  she 
is  in  good  faith  and  without  contraband,  actually 
bound  and  passing  from  one  friendly  or  so-called 
neutral  port  to  another,  and  not  bound  or  proceed- 
ing to  or  from  a  port  in  the  possession  of  the  insur- 
gents, then  she  cannot  be  lawfully  seized. 

Fourth:  That  to  avoid  difficulty  and  error  in 
relation  to  papers  which  strictly  belong  to  the  cap- 
tured vessel,  and  mails  that  are  carried,  or  parcels 
under  official  seals,  you  ^vill,  in  the  words  of  the 
law,  '  preserve  all  the  papers  and  writings  found  on 
board,  and  transmit  the  whole  of  the  originals,  un- 
mutilated,  to  the  judge  of  the  district  to  which 
such  prize  is  ordered  to  proceed.'  But  official  seals, 
or  locks,  or  fastenings  of  foreign  authorities,  are  in 
no  case,  nor  on  any  pretext,  to  be  broken,  or  par- 
cels covered  by  them  read,  by  any  naval  authorities ; 
but  all  bags  or  other  things  covering  such  jiarcels, 
and  duly  sealed  or  fastened  by  foreign  authori- 
ties, will  be,  in  the  discretion  of  the  United  States 
officer  to  whom  they  may  come,  delivered  to  the 
consul,  commanding  naval  officer,  or  legation  of  the 
foreign  government,  to  be  opened,  upon  the  under- 
standing that  whatever  is  contraband,  or  important 
as  evidence  concerning  the  character  of  a  captured 
vessel,  will  be  remitted  to  the  prize-court,  or  to  the 
Secretary  of  State  at  Washington,  or  such  sealed 


45'2  OF   THE   DUTIES    OF    PRIZE    COMMISSIOJSTEKS. 

bao-s  or  parcels  may  be  at  once  forwarded  to  this 
department,  to  the  end  that  the  proper  authorities 
of  the  foreign  government  may  receive  the  same 
without  delay. 

"  You  are  specially  informed  that  the  fact  that  a 
suspicious  vessel  has  been  indicated  to  you  as  cruis- 
ino-  in  any  limit  which  has  been  prescribed  by  the 
department,  does  not  in  any  way  authorize  you  to 
depart  from  the  practice  of  the  rules  of  visitation, 
search,  and  capture,  prescribed  by  the  law  of  nations. 
"Very  resj^ectfully, 

"  Gideon  Welles,  Secretary  of  the  NavyT 


OF    THE    DUTIES    OF   PRIZE    COMMIS- 

SIONEES. 

The  duties  of  TiiE  duties  of  the  prize  commissioners  with  refer- 
pHze^eommiV  eucc  to  the  captuTcd  property,  and  the  proceedings 
sioners  prior  '^^  adjudication,  have  been  held  by  the  prize-courts 
latioQ.  both  of  Great  Britain  and  of  the  United  States,  until 

the  passage  of  an  act  of  Congress,  of  March  25th, 
1862,  "for  the  better  administration  of  the  law  of 
prize,"  to  be  all  comj^rised  under  the  three  follow- 
ing heads : 

1st.  Receiving  the  -priza  property  from  the  cap- 
tors, placing  their  seals  thereon,  and  safely  keeping 
the  same  until  process  is  issued,  under  Avhich  their 
possession  is  superseded  by  that  of  the  marshal. 

2d.  Receiving  from  the  prize  master  the  papers, 
documents,  charts,  and  books  of  every  description, 
found  on  board  the  prize;  causing  their  identihca- 
tion  by  the  j^rize  master,  in  an  affidavit  to  be  made 
by  him  for  that  purpose  marking  each  paper  to  se- 
cure tlie   identification,   and   depositing  the   same 


OF   THE   DUTIES    OF   PRIZE    COIVIMISSIONEES. 


453 


witli  tlie  prize  master's  affidavit  of  identity,  en- 
veloped, and  sealed  witK  tlieir  seals,  in  the  registry 
of  tlie  court. 

3d.  Taking  the  testimony  of  each  witness  pro- 
duced to  them  by  the  captors,  for  examination, 
separately,  and  apart  from  their  counsel,  and  in 
answer  to  the  standing  interrogatories,  in  prepara- 
torio^  and  after  complying  with  the  required  for- 
malities depositing  the  same  enveloped,  and  sealed 
with  their  seals,  in  the  registry  of  the  court. 

By  the  act  of  Congress  referred  to,  a  single  further 
duty  is  devolved  upon  prize  commissioners,  in  the 
follo\\ang  words : 

"  It  shall  be  the  further  duty  of  said  prize  com-  Additional  du- 

.      .  i     ,  T        ,  •  f»  j_    1  •  1  •         l-ies  imposed 

missioners,  at  the  time  ot  taking  such  possession,  by  act  of  Con- 
and  from  time  to  time,  pending  the  adjudication,  ^^®^^- 
to  examine  mto  the  condition  of  said  property,  and 
report  to  the  court  if  the  same,  or  any  part'  thereof, 
be    perishing,    or   perishable,    or   deteriorating    in 
value." 

As  the  prize  property  was  to  be  under  the  seal 
of  the  commissioners,  pending  the  adjudication,  and, 
of  course,  could  not  be  examined  "without  the  re- 
moval of  their  seal,  it  was,  no  doubt,  thought  proper, 
by  the  framers  of  the  law,  that  it  should  be  occa- 
sionally examined  by  them,  and  its  condition,  if 
perishing,  made  known  to  the  court. 

But  these  words  have  been  held  to  impose  upon  Construction 

,  T  •      .  1     1  •    1  1  of  tlie  act  by 

the  commissioners  many  onerous,  and  highly  re-  united  states 
sponsible  duties.  _  I^'Sa 

These  additional  duties  devolving  upon  the  prize  Circuit. 
commissioners,  as  held  by  the  distinguished  judge 
of  the  Circuit  Court  of  the  United  States,  for  the 
second  Judicial  Circuit,  in  the  case  of  The  Hiawa- 


454  OF   THE   DUTIES    OF   PRIZE    COMMISSIONERS. 

ha,  on  appeal  from  a  decree  of  condemnation,  ren- 
dered by  the  District  Court  for  the  Southern  Dis- 
trict of  New  York,  are  as  follows : 

;^l)>.st — That  where  they  find  the  property  perish- 
ing, they  must  make  a  motion  for  its  sale,  and  noti- 
fy the  district  attorney,  and  the  proctor  for  the 
claimants,  of  the  motion  to  be  made. 

Second — That  their  power  is  joint,  and  that  the 
concurrence  of  both  is  necessary  to  the  validity  of 
their  acts. 

Third — ^That  the  power  to  report  to  the  court  as 
to  the  condition  of  the  property  as  they  examined 
the  same,  from  time  to  time  during  the  litigation, 
makes  them  the  representatives  of  all  parties  in  in- 
terest ;  and  therefore,  although  the  act  requires  the 
sale  of  the  property  to  be  made  by  the  marshal,  it 
must  be  made  under  the  direction  and  suj)erintend- 
ence  of  the  prize  commissioners. 

Fourth — That  they  must  attend  the  sale  of  cap- 
tured property,  as  the  representatives  of  all  parties 
in  interest,  and  see  that  the  property  is  not  sacri- 
ficed thereat. 

Fifth — That  where  a  cargo  is  to  be  discharged 
and  appraised  before  sale,  this  is  to  be  done  under 
the  superintendence  of  the  prize  commissioners. 
That  they  must  take  an  accurate  list  of  each  ifem 
of  the  cargo,  when  it  is  discharged,  Avith  a  view  to 
appraisal.  That  they  must  separately  appraise,  nnd 
cause  to  be  separately  sold,  the  separa.te  parcels  of 
each  bill  of  lading. 

It  may  be,  and  on  many  accounts  it  undoubtedly 
is,  very  desirable,  that  the  prize  conimissioners 
should  be  clothed  with  this  power,  and  be  charged 
with  these  duties ;  but  if  it  were  the  intention  of 


THE   PEIZE   LIBEL   AND    CLAIM.  455 

Congress  that  such  duties  should  be  devolved  upon 
these  officers,  it  is  to  be  regretted  that  other  lan- 
guage was  not  employed  to  express  that  intention. 

By  the  terms  of  the  act  of  Congress  in  question,  J^^^!^^^^^*^^ 
it  is  the  duty  of  the  prize  commissioners  to  examine  without  the 
the  several  mtnesses  upon  the  standing  interroga-  H^^^ei  ° 
tories,  not  only  apart  fi'om  each  other,  but  "  unat- 
tended by  counsel." 

This  is  believed  to  have  always  been  the  rule  of 
the  English  prize-courts ;  but  in  consequence  of  some 
looseness  of  practice  in  this  respect,  arising  out  of  a 
question  made  as  to  the  true  construction  of  the 
rule,  it  was  probably  thought  advisable  that  a  pro- 
vision so  salutary,  should  receive  the  sanction  of  le- 
gislation. 


cisions. 


THE  PRIZE  LIBEL  AND  CLAIM. 

The  doctrine  that  the  lil^el  in  prize  should  con-  The  rule  as  lo 
tain  no  special  averments  of  the  grounds  on  which  chaSerof 
condemnation  is  claimed,  but  be  altogether  general  „f*5ifJJj™i!JJJ^ 
in  its  allegations,  and  that  the  claim  interposed,  the  claim  sus- 
must  consist  exclusively  of  a  simple  statement  of  recent  d^ 
ownership,  and  a  general  denial  of  the  validity  of 
the  capture — was  briefly  stated  in  the  previous  edi- 
tion of  this  work. 

In  the  case  of  The  Revere^  decided  in  the  Massa- 
chusetts District  Court,  and  in  the  case  of  Empress^ 
as  well  as  in  a  large  number  of  other  cases  decided 
'  in  the  District  Court  of  New  York,  in  which  the 
claimants  were  British  subjects — the  libels  filed  pur- 
suant to  this  rule,  were  objected  to  by  claimants' 


456  THE   PEIZE   LIBEL   AND    CLAIM. 

counsel  as  insufficient,  in  not  setting  fortli  special 
cause  for  capture  or  condemnation — and  the  claim- 
ants insisted  upon  their  right  to  tile  elaborate  an- 
*■  swers,  as  in  instance  causes,  in  addition  to  the  claim 

of  ownership. 

The  doctrine,  however,  as  laid  down,  was,  upon 
elaborate  argument,  affirmed  in  every  case. 

In  the  case  of  The  lievere,  the  learned  judge 
says :  "  The  libel  need  not  set  forth  sj^ecifically  the 
grounds  on  which  condemnation  is  sought.  General 
allegations  are  sufficient.  The  vessel  is  to  be  con- 
demned if  at  all,  on  any  grounds  that  the  examin- 
ation may  disclose.  Prize  proceedings  are  not  sub- 
ject to  the  same  rules  of  pleading  as  suits  on  the 
instance  side  of  the  court.  This  hearing  is  upon 
the  preparatory  evidence,  as  it  is  called,  that  is, 
upon  the  papers  found  on  board  the  vessel,  and  the 
answers  of  her  officers  and  crew  upon  the  standing 
interrogatories.  The  claimants  are  not  entitled  to 
further  proof,  nor  are  the  captors,  unless  in  special 
and  peculiar  cases,  upon  motion  and  cause  shown. 
The  answer,  in  the  nature  of  pleading,  is  therefore 
irregular ;  and  so  much  of  the  document  called  a 
test  affidavit  as  goes  beyond  the  facts  of  the  claim, 
I  shall  not  regard  as  evidence." 


DELIVEET   TO    CLAEVIAKTS    ON   BAIL. 


457 


DELIVERY  TO  CLAIMANTS  ON  BAIL. 

The  delivery  of  captured  property  to  claimants  Delivery  of 

•^  ■•■  11  •  £  captured  prop- 

on  bail,  before  a  hearing,  is  so  utterly  subversive  ot  erty  to  ciaim- 

tlie  policy  of  tlie  law  of  maritime  capture,  that  the  J^f^;  °^  j^^^;. 

designation  of  the  practice  by  Mr.  Justice  Story  ii« 'J?f; '„f  J^^ 

a  "  o;ross  irreo-ularity,"  is  one  of  mild  rei)roof.  policy  and 

-  .  .1      Burpose  of 

The  naval  power  of  the  nation  is  employed  m  the  maritime  cap- 
capture  of  the  property  of  its  enemy,  or  that  which  *"'^®- 
is  being  used  in  aid  of  its  enemy,  upon  the  high 
seas.     The  purpose  of  such  capture  is  the  sole  basis 
of  the  belligerent  right,  namely,  to  compel  the  ene- 
my to  peaceful  submission  by  destroying  his  means 
of  aggression  or   resistance.     Oftentimes  at  great 
hazard,  always  at  no  inconsiderable  expense,  the 
captured  property  is  sent  into  a  port  of  the  captor's 
country  for  adjudication.     That  it  should  be  then, 
by  judicial  fiat,  forthwith  surrendered  to  the  claim- 
ant on  credit,  is  a  defeat  of  the  manifest  design  of 
the  law,  so  entirely  obvious,  that  it  seems  hardly 
credible  that  such  a  practice  should  prevail,  or  be 
adopted  by  any  court,  which  does  not  at  the  same 
time  ignore  the  existence  of  the  belligerent  right. 
But  that  a  court  of  appellate  jurisdiction  in  prize, 
should  entertain  a  motion  for  the  delivery  of  cap- 
tured property  to  a  claimant,  after  a  decree  of  con- 
demnation of  the  pro2:)erty,  on   the  first  hearing, 
would  seem  still  more  extraordinary. 

One  reason  among  many,  given  by  the  courts  for  Reasons  for 
the  inflexible  rule  of  the  non-delivery  of  captured  nondelivery 
property  to  claimants  on  bail,  before  a  hearing,  is,  fJJJj^f^Jfj.  ^°' 
'  that  it  cannot  then  be  judicially  known  that  the  hearing  and 

•,    .  ,      •  .  .  ,  •  "■        r»  •  condemnation. 

claimants  are  not  enemies  or  acting  tor  enemies. 
It  would,  indeed,  be  strange  if  the  nile  should  be 


458  DELIVERY   TO    CLAEVIAlsrTS    01^   BAIL. 

permitted  to  bend,  wlieu  it  lias  become  known,  by 
the  violent  presumption  resulting  from  a  solemn 
decree,  after  a  hearing,  that  the  property  is  either 
that  of  an  enemy  or  of  one  acting  for  an  enemy. 

The  inveterate  practice  of  fifty  years  of  peace  in 
the  Coui'ts  of  Admiralty  of  the  United  States,  of 
the  delivery  to  claimants,  on  bail,  of  property  seized 
for  the  violation  of  a  municipal  regulation,  may  ac- 
count for  the  difficulty,  both  on  the  part  of  courts 
and  practitioners,  to  realize  at  once  the  necessity  of 
a  total  departure  from  this  practice. 

Indeed,  it  appeared  to  be  regarded  so  pertinacious 
ly  as  a  matter  of  course,  that  claimants  of  property 
captured  as  prize,  were  as  much  entitled  to  have  it 
delivered  to  them  on  bail,  after  appraisement,  as 
claimants  of  proj^erty  seized  for  the  violation  of  a 
revenue  law,  or  the  laws  for  the  suppression  of  the 
slave  trade,  that  the  Congress  of  the  United  States, 
in  "  an  act  for  the  better  administration  of  the  law 
of  prize,"  passed  on  the  25th  of  March,  1862,  pro- 
vided for  the*  sale  of  captured  j^roperty,  and  the  de- 
posit of  the  proceeds  in  the  registry  of  the  prize- 
court,  when  it  was  perishable  or  in  a  perishing  con- 
dition, in  terms  adapted  to  preclude  any  other  dispo- 
sition of  such  property  before  a  final  condemnation. 

To  secure  this  beyond  a  doubt,  and  to  place  the 
policy  of  maritime  capture  beyond  the  possibility 
of  defeat,  in  this  respect,  l)y  judicial  construction,  it 
would  be  wise  in  future  legislation,  to  provide  in 
express  tenns,  that  the  disposition  of  perishing  cap- 
tured ])roperty,  by  sale,  was  designed  to  interfere 
with  and  to  exclude  its  delivery  on  bail,  and  and 
other  mode  of  disposition  of  the  subject-matter  of 
litigation  pending  the  suit. 


DELIVEllY    TO    CLAIMANTS    OK    BAIL.  459 

In  the  former  edition  of  tliis  work  the  established  Ti'e  doctrine 

of  non-deliv- 

rule  of  non-delivery  of  captured  j^roperty  to  claim-  ery  fuiiy  sus- 
ants,  on  bail,  was  briefly  stated,  and  the  authorities  cis^n  ortbe ' 
cited  by  which  the  rule  was  established.  DSict^'court 

In  the  case  of  The  Amy  Warwick  07i  the  claim  of  Massachu- 

.  setts 

of  Phipps^  after  the  court  had  allowed  the  claimants 
to  introduce  further  proof  of  property,  a  motion  was 
made  for  the  delivery  to  them  of  the  property  which 
they  claimed,  on  appraisement  and  bail.  The  mo- 
tion was  opposed  by  the  captors,  who,  on  their  part, 
moved  for  a  sale  of  the  property.  In  denying  the 
motion  for  the  delivery  of  the  property  on  bail,  and 
ordering  instead,  its  sale,  the  learned  judge  thus  ag- 
gregates the  objections  to  the  former  practice,  which 
he  said  had  "  always  weighed  with  prize-courts :"  "  Be- 
fore the  hearino;  in  weiparatorio,  it  cannot  well  be  Reasons  for 

.        the  sale  stated 

judicially  known  that  the  claimants  are  not  enemies,  in  the  case  of 
or  acting  for  enemies  ;  or  that  if  not  so,  that  they  '^^^wicl 
have  such  absolute  title  in  the  property  as  to  be  the 
persons  to  whom  it  should  be  restored,  in  case  it 
should  be  decided  to  be  no  prize,  and  the  captured 
property  may  itself  be  evidence.  If,  on  the  hear- 
ing, their  claim  remain  in  doubt  on  any  of  these 
points,  why  should  they  take  the  property  rather 
than  the  captors  ?  The  court  must  be  carefal  to  de- 
liver the  property  to  none  but  actual  owners,  and 
persons  who  would  not  pass  it  to  an  enemy  for 
whom  they  might  act.  There  are  other  difficulties 
attending  this  course  in  the  general.  It  throws  on 
the  captors  the  risk  of  the  sufficiency  of  the  bonds- 
men at  the  time,  and  their  continued  solvency  until 
a  final  decision  in  the  appellate  court.  It  gives  the 
claimants  the  choice  of  abiding  or  not  abiding  by  the 
appraisement.     If  it  is  low,  they  ^vill  adopt  it,  and 


460 


THE   CAPTOliS    ENTITLED   AS   DISTEIBUTEES. 


Reasons  for 
the  rule  of 
non-delivery 
on  bail  appli- 
cable to  non- 
delivery on 
payment  of 
appraised 
value. 


give  bonds,  and  so  make  a  profit  at  the  expense  of  the 
captors.  If  the  appraisement  is  to  the  full  value, 
they  may  decline  to  give  the  bonds.  And  there  is 
always  danger  of  under  valuation,  not  only  by  fraud, 
and  by  the  pressure  of  interests  in  the  trade,  but 
fi'om  erroneous  principles  of  estimation.  A  public 
sale  is  the  best  and  fairest  j)roof  of  value,  and  the 
funds  in  the  registry,  to  be  delivered  to  the  parties 
finally  decided  to  be  entitled  to  it,  is  the  most  sat- 
isfactoi^j)'  course,  where  there  are  no  special  circum- 
stances." 

It  will  be  seen  that  all  of  these  objections  to  the 
delivery  of  captured  pro23erty  to  claimants,  on  bail, 
with  the  single  exception  of  that  which  refers  to  the 
sufficiency  and  continued  solvency  of  the  stipulators, 
are  alike  applicable*  to  the  delivery  of  such  property 
to  claimants,  upon  payment  into  court  of  its  ap- 
praised value — a  practice  no  less  calculated  to  de- 
feat the  great  end  of  maritime  capture. 


of  ConOTebs. 


THE    CAPTORS   ENTITLED   AS  DISTRIBU- 
TEES.    HOW  DETERMINED. 

New  rules  of  By  the  third  section  of  the  Act  of  Congress  of 
by  recent°act  J^^^J  l^^^ij  1^62,  material  alterations  are  effected  in 
the  mode  of  distribution  of  the  moiety  of  the  "pro- 
ceeds of  maritime  captures,  accruing  to  naval  captors. 
By  the  provisions  of  this  section,  after  deducting 
one-twentieth  part  of  the  prize  money  awarded  to 
the  capturing  vessel,  for  the  commander  of  the  fleet 
or  squadron,  to  which  she  is  attached,  if  thus 
attached,  and  two-twentieths  for  the  commander  of 
the  captui'ing  vessel,  if  attached  to  ?,  squadron,  and 


HOW   DETERMINED.  461 

tliree-twentietlis  if  tlie  sliip  was  acting  independ- 
ently of  any  superior  officer,  tlie  residue  of  the 
prize  money  awarded  to  tlie  capturing  vessel  is  to 
be  "  distributed  and  apportioned  among  all  otters 
doing  duty  on  board,  and  borne  upon  tbe  books, 
according  to  tbeir  respective  rates  of  pay  in  the 
service." 

By  the  fourth  subdivision  of  the  same  section.  Vessels  within 

1  n     ,1  //       'iT  '  •  -I       T    I  rtsici'nnl distance 

vessels  ot  the  navy  "  witiiin  signal  distance  oi  entitled  to 
another  making  a  prize,"  are  entitled  to  share  in  ^'^^'■'^• 
the  prize ;  and  it  w^ould  seem,  by  the  provisions  of 
this  subdivision,  that  in  the  event  of  two  or  more 
vessels  in  the  navy  being  entitled,  as  joint-captors, 
after  deductino;  the  flasr-officer's  one-twentieth,  the 
entire  residue  of  the  captors'  moiety  is  to  be  dis- 
tributed among  all  the  officers  and  men  of  the  ships 
entitled,  including  the  commanders,  according  to 
the  rates  of  pay  of  all  on  board,  who  are  borne 
upon  the  books. 

By  the  fifth  section  of  this  act,  forfeiture  of  the  Forfeiture  of 
share  of  prize  money  to  w^hich  a  commander  mischt  commander's 

-"•  -^  .  o       share  of  prize 

be  entitled  as  the  result  of  a  capture,  is  declared  to  money,  for  eer- 
be   the  consequence  of  a  neglect  to  perform  the  ^^"^  °^^  ^° " 
duties  therein  prescribed,  as  follows  : 

"That  the  commanding  officer  of  every  vessel,  or 
the  senior  officer  of  all  vessels  of  the  navj^,  wdiich 
shall  capture  or  seize  upon  any  vessel  or  vessels, 
as  prize,  shall  carefully  preserve  all  papers  and 
wi'itiugs  found  on  board,  and  transmit  the  whole 
of  the  originals,  unmutilated,  to  the  judge  of  the 
district  to  which  such  prize  is  ordered  to  proceed, 
with  the  necessary  witnesses,  and  a  report  of  the 
circumstances  attending  the  capture,  stating  the 
names  of  vessels  claiming;  a  share  thereof;  and  the 


462  THE    CAPTOES    ENTITLED    AS   DISTRIBUTEES. 

commanding  officer  of   every  vessel  in   the  navy 
entitled  to  or  claiming  an   award  of  prize  money, 
shall,  as  early  as    practicable,   after   the  capture, 
transmit  to  the  navy  department  a  complete  list  of 
the  officers  and  men  of  his  vessel,  entitled  to  share, 
inserting  thereon  the  quality  of  every  person  rating." 
By  the  seventh  section  of  the  same  act,  forfeiture 
of  prize  money  is  declared  to  be  also  a  portion  of 
the  penalty  upon  any  person  in  the  navy  who  shall 
"  take  out  of  any  prize,  or  vessel  seized  as  prize, 
any  money,  plate,  goods,  or  any  part  of  her  equip- 
ment, before  the  same    shall  be  adjudged  lawful 
prize  by  a  competent  court,  unless  it  l^e  for  the 
better  preservation  thereof,  or  absolutely  necessary 
for  the  use  of  any  of  the  vessels  or  armed  forces  of 
the  United  States." 
Armed  ves-        By  the  sixth  sectiou  of  the  act,  "  armed  vessels  in 
menrsfrdcrtlie  service  of  the  United  States,  which  shall  make 
entitled  as  if  ^  capture,"  or  be  within  sis^nal  distance  of  a  vessel 

m  the  navy.  J^  '  .       -^ 

of  the  navy,  when  making  a  capture,  are  declared 
to  be  "  entitled  to  an  award  of  prize  money,  in  the 
same  manner  as  if  such  vessels  belonged  to  the 
navy." 

Merchant  ves-     Merchant  vessels  makmo^  a  capture  are  not  en- 

sels  making        •   i     n    i  .7 

captures  not  titled,  by  stvict  law,  to  any  share  whatever  of  the 
st°riet'^ia\s"—  pi'ocecds  of  the  captured  property ;  but  it  has"  not 
a'share^i'r^'''^^*^'^^^  the  practice  to  exact  in  such  cases  the  legal 
awarded  liiem  right  of  the  government  to  the  entire  proceeds,  but, 

commensurate  ,  .  ^  '      ■     ' 

with  the  mcri-  ou  the  Contrary,  to  award  the  merchant  captors  a 
actcr  of  u'lc"^  portion  of  the  proceeds,  and  sometimes  even  the 
service.         Avliolc,  accordino^  to  the  circumstances  of  the  case, 

* — ■  7 

and  the  meritorious  character  of  the  service  per- 
formed. 


HOW   DETEElVniSrED.  463 

By  this  practice  it  is  understood  tliat  the  conces- 
sion of  tlie  strict  legal  rights  of  the  government  is 
optional  with  the  navy  department,  and  the  courts 
in  such  cases,  act  upon  such  concession,  in  their  de- 
crees of  distribution. 

Such  was  the  recent  case  of  'The  Agnes  H.  Ward, 
captured  by  the  merchant  California  steamer,  North- 
ern Lights  and  adjudicated  in  the  District  Court 
of  the  United  States  for  the  District  of  New  York. 

A  lieutenant  in  the  navy  of  the  United  States 
happened  to  be  on  board  the  merchant  steamer  as 
passenger,  and  took  part  in  the  capture.  Upon  the 
concessions  of  the  secretary  of  the  navy,  the  court 
decreed  three  twentieths  of  the  captor's  moiet}^  to 
the  lieutenant  on  board,  as  if  in  command  of  a 
single  ship,  acting  independently,  and  the  residue 
of  the  captor's  moiety  to  the  merchant  vessel,  to  be 
distributed  in  designated  proj)ortions  among  owners, 
officers,  and  men. 

Who  are  the  lawfid  distributees  of  prize  money 
as  captors  or  joint  captors,  is  settled  by  the  final 
decree  of  distribution  of  the  prize-coui't. 

This  decree  of  distribution  is  not,  as  it  was  prior  Decree  of  dia- 
to  the  Act  of  Congress  of  March  25th,  18G2,  a  de- Sow  j-equired 
cree  of  detailed  distribution  settina:  forth  not  only  to  '^e  rendered 

by  tliG  <ict  ot 

the  vessels  entitled,  but  the  individuals,  and  the  March  25th, 
amount  to  be  paid  to  each. 

By  the  provisions  of  that  act,  the  decree  of  final 
distribution,  now  only  determines  what  ships  are 
entitled,  and  whether  the  captured  vessel  was  of 
superior,  equal,  or  inferior  force  to  the  cajDturing 
vessel. 

This  decree  is  to  be  based  upon  the  re})^^:  of 


404 


COSTS   AND    DISBURSEMENTS    IN   PRIZE   PROCEEDINGS. 


And  how  and  the  prizo  commissioners  to  tlie  court,  setting  fortli 
^me'^istobe  tlie  evidence  produced  before  tliem  upon  these 
executed.  ^     ^^^^^s  by  the  government  and  the  captors. 

Upon  the  basis  of  this  decree,  the  amount  to 
which  each  person  is  entitled  as  captor,  is  then  as- 
certained at  the  navy  dej^artment,  where  the  prize 
lists  are  required  by  law  to  be  sent  by  commanders, 
where  the  respective  rates  of  j^ay  of  all  on  board 
the  vessels  entitled,  is  known,  and  where  the  prize 
money  is  to  be  paid  under  the  direction  of  the 
secretary. 


Character  of 

the  costs  and 
disburse- 
ments. 


How  to  be 
liquidated. 


COSTS  AND   DISBURSEMENTS    IN    PRIZE 

PROCEEDINGS. 

The  sending  in,  safe  keeping  and  adjudication  of 
captured  property,  necessarily  involve  large  expen- 
ditures. These  consist  of  pilotage,  towage,  wharf- 
age, insurance,  the  expenses  of  an  unlivery  of  cargo, 
where  such  unlivery  is  necessary  to  its  preservation, 
storage,  and  the  numerous  expenses  incident  to  the 
adjudication,  appraisement  and"  sale. 

These  costs  and  expenses  constitute  a  charge 
upon  the  proceeds  of  the  property,  if  the  same 
should  be  condemned  and  sold.  But  many  of  these 
expenses  are  of  such  a  nature  as  to  require  imme- 
diate disbursement,  and  the  liquidation  of  none  of 
them  should  be  postponed  to  the  termination  of  a 
protracted  litigation,  especially  if  the  litigation  be 
protracted  by  apj)eals  from  final  decrees  of  condem- 
nation. 

To  provide  against  such  delays,  which  have  occa- 
sioned verv  great  embarrassment  in  the  recent  judi- 


COSTS    AND    DISBUKSEMEKTS    IN    PRIZE    PROCEEDINGS.  465 

cial  proceedino'S    upon    maritime    captures    in   the  Emban-ass- 

^  ^  ^  T  T      .         -,  ments  result- 

courts  of  the  United  States,  the  oT)viously  proper  ing  from  the 
course  is  that  pursued  in  the  British  Admiralty,  prppnation  to 
namely,  the  provision  of  a  fund  by  the  government,  P^J'^*^^®°Jj^^^^' 
for  the  purpose  of  promj)t  liquidation  of  these  ex-ofadjudica- 
penses,  under  such  regulation  as  shall  insure  its 
proper  application,  as  an  advance  by  the  dominus 
litis,   upon   the    security   of  the   property   in   his 
possession. 

By  the  provisions  of  the  act  of  Congress  of  ]\Iarch  Attempted 
25th,  1862,  it  was  attempted  to  effect  the  pajaneut  staS pro- 
of the  expenses  referred  to  out  of  the  proceeds  of  ^'^^^^^-  ■ 
the  sale  of  caj)tured  property,  without  further  delay 
than  that  recjuisite  for  its  condemnation ;  and  in 
view  of  the  ordinary  and  requisite  celerity  in  prize 
proceedings,  it  was  thought   that  a  provision  for 
payment  at  such  time,  might    supersede    the   ne- 
cessity of  providing  a  special   fund,  and  tend  to 
relieve  the  embarrassments  arising  from  the  delay. 

The  second  section  of  the  act  i-eferred  to,  accord- 
ingly provides  that  the  several  charges  and  expenses 
enumerated,  "  having  been  audited  and  allowed  by 
the  court,  shall,  in  the  event  of  a  decree  of  condem- 
nation, be  paid  out  of  the  proceeds  of  any  sale  of 
the  property,  final  or  interlocutory,  in  the  custody 
of  the  court." 

An  appeal  from  a  decree  of  condemnation  in  a  Reasons  for 

TTT  ...  T'TTiii  such  construo 

prize  cause,  should  not,  it  was  urged,  as  m  England  tion  of  the 
it  does  not,  stay  the  execution  of  the  decree,  except  gffaJ^seJure 
so  far  as  to  postpone  the  final  distribution  of  the  the  remedy. 
net  proceeds  of  the  property. 

In  the  case  of  a  capture  by  a  private  armed  ves- 
sel, the  captors  are  entitled  to  the  possession  of  the 
property  upon  security,  after  a  condemnation,  not- 
30 


466  COSTS    AXD   DISBFESEMEXTS   IX    PEIZE    TEOCEEDES-GS. 

witlistanding  an  appeal ;  and  where  fhe  capture  is 
made  by  a  public  sliip,  a  sale  of  the  property,  and 
deposit  of  the  proceeds,  as  required  by  law,  should, 
in  all  cases,  follow  directly  upon  a  decree  of  con- 
demnation, even  though  an  appeal  be  interposed. 
It  would  be  intolerable,  it  was  said,  to  allow  a 
claimant  of  captured  property,  after  it  has  been 
condemned  on  the  proofs  and  argument,  by  the  in- 
tervention of  an  appeal  which,  in  ninety-nine  cases 
out  of  every  hundred,  is  for  delay  simply,  and  upon 
his  giving  an  appeal-bond  for  the  paltry  sum  of  two 
hundred  and  fifty  dollars,  as  required  by  law,  to  tie 
up  property,  perhaps  to  the  value  of  half  a  million, 
which  not  being  perishable,  cannot  be  sold,  during 
the  mouths,  and  it  may  be  years,  of  the  pendency 
of  the  several  apf)eals,  the  expenses  upon  which, 
for  safe  custodv  and  insurance,  exceed  the  amount 
of  his  appeal  bonds,  during  each  week  of  the  litiga- 
tion— and  which  expenses  he  is  in  no  event  bound 
to  pay — but  which  must  be  deducted  from  the  pro- 
ceeds of  the  property,  thus  reducing,  by  thousands, 
the  amount  subject  to  the  final  decree  of  distribution. 
Such  a  practice,  it  was  said,  would  seem  even 
more  intolerable  and  unjust,  when  it  is  considered 
tliat  it  is  the  established  rule  of  prize-courts,  tliat  a 
decree  of  condemnation,  in  the  first  instance,  beino- 
conclusive  evidence  of  the  hio-hest  character,  oT  the 

O  7 

probable  and  justifiable  cause  of  capture,  subjects 
the  claimants  to  the  payment  of  all  the  costs  and 
expenses,  even  although  such  decree  should  be  re- 
versed on  appeal. 

Indeed,  the  captured  property  is  invaiiably 
charged  with  the  costs  and  expenses,  by  the  de- 
cisions of  prize-courts,  wherever  probable  cause  for 


COSTS   AXD    mSBUKSEMENTS   LN   PEIZE   PEOCEEDIKGS.  46*7 

the  capture  existed ;  althougli  restitution  slionld 
he  decreed,  at  tlie  hearing,  on  the  proofs,  in  the  fu*st 
instance. 

It  was  therefore  considered  that  the  legislative 
enactment,  providing  for  the  pajnnent  of  the  costs 
and  expenses  out  of  the  proceeds  of  a  sale  of  the 
property,  "  in  the  event  of  its  condemnation,"  would 
not  only  secui'e  their  payment  without  great  delay, 
but  would  be  manifestly  just,  and  in  accordance 
with  the  theory  of  prize  proceedings,  and  the  prac- 
tice of  prize-courts. 

This  statute  has,  however,  received  a  judicial  con- 
struction at  variance  from  all  this. 

The  Sarah  Starr  and  The  Aighnrth^  having  been  The  statute 

T  1  ill  •  'iii^i-i  otherwise  con- 

condemned  upon  the  hearing  m  the  nrst  mstance,  stmed'by  the 
by  the  decrees  of  the  District  Court  of  the  United  ^•'•j;^'^Yi°ied 
States  for  the  Southern  District  of  New  York,  the  states  in  the 

,       ,    .  ,       .  ,  TIP  ii      Second  Circuit 

several  claimants  m  each  case  appealed  irom  the  in  the  eases  of 
decrees  to  the  United  States  Circuit  Court.  ?tfan? 

The  cargoes  had  been  sold  on  interlocutory  order,  TheAighurtn. 
and  the  proceeds  deposited  in  court.  The  claimants 
and  appellants  then  moved  the  Circuit  Court  for  an 
order  for  the  appraisement  of  the  vessels,  and  their 
deliveiy  to  them,  upon  executing  a  bond  for  their 
appraised  value. 

The  marshal  then  intervened,  and  prayed  for  an 
order  for  the  payment  of  the  expenses  and  disburse- 
ments out  of  the  proceeds  in  court  in  the  several 
causes,  and  which  he  had  indi\adually  disbursed ; 
consisting  of  pilotage,  towage,  wharfage,  keeper's 
fees,  &c. 

After  reciting  the  provisions  of  the  act  of  March, 
1862,  the  learned  judge  says : 

"  It  will  be  seen,  from  the  above  provisions,  tlin,t 


468  COSTS    AND   DISBURSEMENTS    IN   PRIZE   PROCEEDINGS. 

tlie  cliiimunt  is  not  responsible  for  tlie  costs  and 
expenses  attending  the  seizure,  detention  and  safe 
custody  of  tlie  vessel  seized  by  tbe  government,  un- 
less followed  by  a  decree  of  condemnation,  or  res- 
titution on  payment  of  the  costs. 

"The  government  is  the  libellant,  instituting 
proceedings  against  the  vessel,  and,  like  any  other 
party  instituting  a  suit,  is  responsible  for  the  ex- 
penses incurred  in  the  progress  of  the  litigation, 
accompanied  ^Y{th  the  right  of  reimbursement  in 
the  event  of  success,  nauiely,  the  condemnation  of 
the  vessel,  <fec. 

"  The  claimant  acts  on  the  defensive,  and  is  not 
subject  to  any  portion  of  the  costs  and  expenses 
incurred  by  the  proceeding  of  the  libellant,  except 
his  own,  in  the  progress  of  the  defense,  till  ad- 
judged against  him  by  the  court  in  the  final  adju- 
dication. 

"  It  is  true  that '  these  costs  and  expenses  are  a 
charge  upon  the  property  seized,  whether  vessel  or 
cargo,  and  which  remains  in  the  custody  of  the  law, 
or  its  proceeds,  in  case  of  an  interlocutory  sale,  or 
the  bond,  as  representing  the  property,  in  case  it  is 
bonded,  as  a  security  for  the  reimbursement  of  these 
costs  and  expenses ;  and  this  charge  upon  the  res 
continues  until  the  final  adjudication  of  the  ease. 
If  favorable  to  the  libellant,  they  are  paid  out  of 
the  proceeds ;  if  not,  they  are  exem]:)t,  and  the  prop- 
erty, or  proceeds,  restored  to  the  claimants. 

"  Applying  these  principles  to  the  case  before  us, 
it  is  quite  clear  that  the  marshal's  bill  presented, 
which  includes  charges  for  his  own  services,  for 
whai-fage,  towage,  &c.,  cannot  be  allowed.  He 
must  look   to  the   government,  the   liljellant,  for 


COSTS   AND   DISBUESEMEIS^TS   IN   PRIZE   PKOCEEDESTGS.  -169 

these  expenses,  or  postpone  liis  claim  to  tlie  final 
adjudication,  when,  if  against  the  claimant,  he  may 
be  paid  out  of  the  proceeds,  otherwise  not." 

By  the  language  of  this  opinion,  it  is  apparent 
that  the  learned  court  regards  a  proceeding  in  a 
prize-court,  in  adjudication  upon  a  maritime  cap- 
ture, as  analogous  to  an  instance-suit  iu  Admiralty,  in 
this,  that  neither  the  capture,  nor  the  decree  of  con- 
demnation after  hearing,  upon  the  proofs,  furnish 
any  presumj)tion  against  the  claimant ;  and  fui'ther, 
that  the  framers  of  the  statute,  in  providing  for  the 
payment  of  the  expenses  out  of  the  proceeds  of  the 
property  "  in  the  event  of  condemnation,"  intended 
a  decree  of  condemnation,'  affirmed  by  the  Circuit 
Coui't,  and  again  affirmed  by  the  Supreme  Coui't  of 
the  United  States. 

If  the  intention  of  the  act  was  such  as  it  was  sup- 
posed to  be  prior  to  this  decision,  the  efPect  of  this 
authoritative  construction  was  to  render  it  nuga- 
tory ;  and  thus  the  question  of  the  payment  of  the 
costs  and  disbursements  incident  to  adjudications 
in  prize,  remained  in  the  like  situation  as  before  the 
statute,  and  continued  to  impose  serious  and  in- 
creasing embarrassments  upon  the  respective  officers 
charo;ed  with  the  administration  of  the  law. 

An  attempt  was  made  to  provide  a  remedy  for  incongruous 
this,  by  further  legislation  during  the  same  session  d?rei''lno°pera- 
of  Cono^ress ;  Ijut  it  was  unfortunately  postponed  to  ti^®  ^  ^ubse- 

~  '  ,  .  p         quent  attempt 

the  last  day  of  the  session,  and  then,  as  is  too  often  to  provide  a 
the  consecLuence  of  such  delay,  the  provisions  which  "^^^^  ^' 
passed  into  a  law  were  ill  considered,  and  of  a  char- 
acter so  ambiguous  and  contradictory,  as  to  be  in- 
operative in  accomplishing  the  purpose  designed. 
A  brief  but  comprehensive  legislative  enactment 


470  COSTS   AND    DISBURSEMENTS   IN   PEIZE    PROCEEDINGS. 

wliicli  sLould  supersede  all  j^resent  statute  pro- 
visions, aud  be  a  full  execution  of  the  power  con- 
ferred upon  Congress  by  the  10th  subdivision  of 
the  8th  section  of  the  Constitution  of  the  United 
States,  "  to  make  rules  concerning  captures  on  land 
and  water,"  is  imperatively  required  at  the  earliest 
practicable  moment. 


APPENDIX. 

NO.    I. 

LETTER  PROM  SIR  W.  SCOTT  AND  SIR  J.  NICHOLL  TO  MR.  JAY. 

Sm : — I  have  the  honor  of  sending  the  paper  drawn  up  by  Dr.  NichoU  and  myself;  it  is 
longer  and  more  particular  than  perhaps  you  meant ;  but  it  appeared  to  be  an  error  on  the 
better  side,  rather  to  be  too  minute,  than  to  be  too  reserved  in  the  information  we  had  to 
give ;  and  it  will  be  in  your  excellency's  power  either  to  apply  the  whole  or  such  parts  as 
may  appear  more  immediately  pertinent  to  the  objects  of  your  inquiry. 

I  talie  the  liberty  of  adding,  that  I  sliall  at  all  times  think  myself  much  honored  by  any 
communications  from  you,  either  during  your  stay  here,  or  after  your  return,  on  any  subject 
in  which  you  may  suppose  that  my  situation  can  give  me  the  power  of  being  at  all  useful 
to  the  joint  interests  of  both  countries.  If  they  should  ever  turn  upon  points  in  which  the 
duties  of  my  official  station  appear  to  impose  upon  me  an  obligation  of  reserve,  I  shah  have 
no  hesitation  in  saying  that  1  feel  them  to  be  such.  On  any  other  points  on  wliich  you 
may  wish  to  have  an  opinion  of  mine,  you  may  depend  on  receiving  one  that  is  formed  with 
as  much  care  as  I  can  use,  and  deUvered  with  aU  possible  frankness  and  sincerity. 
I  have  the  honor  to  be, 

With  great  respect,  etc., 

WILLIAM  SCOTT. 
Commons,  Sept.  loth,  1794. 

PAPER   ENCLOSED   IN   THE   FOREaOING  LETTER. 

Sir: — We  have  the  honor  of  transmitting,  agreeably  to  your  excellency's  request,  a 
statement  of  the  general  principles  of  proceeding  in  prize  causes,  in  British  courts  of  admi- 
ralty, and  of  the  measures  proper  to  be  taken  when  a  ship  and  cargo  are  brought  in  as  a 
prize  within  their  jurisdiction. 

The  general  principles  of  proceeding  cannot,  in  our  judgment,  be  stated  more  correctly 
or  succinctly  tlian  we  find  them  laid  down  in  the  following  extract  from  a  report  made  to  liis 
late  majesty  in  the  year  1753,  by  Sir  George  Lee,  then  judge  of  the  prerogative  court,  Dr. 
Paul,  his  majesty's  advocate-general,  Sir  Dudley  Rider,  his  majesty's  attorney-general,  and 
Mr.  Murray  (afterward  Lord  Mansfield),  his  majesty's  solicitor-general : 

"  When  two  powers  are  at  war,  they  have  a  right  to  make  prizes  of  the  ships,  goods,  and 
effects  of  each  other,  upon  the  high  seas.  Whatever  is  the  property  of  the  enemy,  may  be 
acquired  by  capture  at  sea ;  but  the  property  of  a  friend  cannot  be  taken  provided  he  ob- 
serves his  neutrality. 

"Hence  the  law  of  nations  has  established, 

"  That  the  goods  of  an  enemy,  on  board  the  ship  of  a  friend,  may  be  taken. 

"  That  the  lawful  goods  of  a  friend,  on  board  the  ship  of  an  enemy,  ought  to  be  restored. 

'■  That  contraband  goods,  going  to  the  enemy,  though  the  property  of  a  friend,  may  be 
taken  as  prize ;  because  supplying  the  enemy  with  what  enables  hun  better  to  carry  on 
the  war,  is  a  departure  from  neutrality. 

"  By  tlie  maritime  law  of  nations,  universally  and  immemorially  received,  there  is  an  es- 
tablished method  of  determination,  whether  the  capture  be,  or  be  not,  a  lawful  prize. 

"  Before  the  ship,  or  goods,  can  be  disposed  of  by  the  captor,  there  must  be  a  regular 
judicial  proceeding,  wherein  both  parties  may  be  heard ;  and  condemnation  thereupon  as 
prize,  in  the  court  of  admiralty,  judging  by  the  law  of  nations  and  treaties. 

"  The  proper  and  regular  court,  for  these  condemnations,  is  the  court  of  that  state  to 
which  the  captor  belongs. 


472  APPENDIX. 

"The  evidence  to  acquit  or  condemn,  with  or  without  costs  or  damages,  must,  in  the  first 
instance,  come  merely  from  Ihe  ship  taken,  viz. :  the  papers  on  board,  and  the  examination 
on  oath  of  the  master,  and  otlier  principal  officers ;  for  which  purpose  there  are  officers  of 
admiralty  in  all  the  considerable  seaports  of  every  maritime  power  at  war,  to  examine  the 
captains,  and  otlier  principal  officers  of  every  ship,  brought  in  as  prize,  upon  general  and 
impartial  interrogatories.  If  there  do  not  appear  from  thence  ground  to  condemn,  as  ene- 
my's ])roperty  or  contraband  goods  going  to  the  enemy,  there  must  be  an  acquittal,  unless 
from  the  aforesaid  evidence  the  property  shall  appear  so  doubtful,  that  it  is  reasonable  to 
go  into  farther  proof  tliereof. 

"  A  claim  of  ship,  or  goods,  must  be  supported  by  the  oath  of  somebody,  at  least  as  to 

belief. 

•'  The  law  of  nations  requires  good  faith.  Therefore  every  ship  must  be  provided  with 
comi)lete  and  gcnume  papers;  and  the  master  at  least  should  be  privy  to  the  truth  of  the 
transaction. 

"To  enforce  these  i-ulcs,  if  there  be  false  or  colorable  papers;  if  any  papers  be  thrown 
overboard ;  if  the  master  and  officers  examined  in  preparatorio,  grossly  prevaricate ;  if  proper 
ship's  papers  are  not  on  board ;  or  if  the  master  and  crew  cannot  say  whether  the  ship  or 
cargo  be  the  property  of  a  friend  or  enemy,  the  law  of  nations  allows,  according  to  the  dif- 
ferent degrees  of  misbehavior,  or  suspicion,  arising  from  the  fault  of  the  ship  taken,  and 
other  circumstances  of  the  case,  costs  to  be  paid,  or  not  to  be  received,  by  the  claimant,  in 
case  of  acquittal  and  restitution.  On  the  other  hand,  if  a  seizure  is  made  without  probable 
cause,  the  captor  is  adjudged  to  pay  costs  and  damages.  For  wWch  purpose  all  privateers 
are  obli"-ed  to  give  security  for  their  good  behavior ;  and  this  is  referred  to,  and  expressly 
stipulated  by  many  treaties. 

'•  Though  from  the  ship's  papers,  and  the  preparatory  examinations,  the  property  does  not 
sufficiently  appear  to  be  neutral,  the  claimant  is  often  indulged  with  time  to  send  over  affi- 
davits to  supply  that  defect;  if  he  will  not  show  the  property  by  sufficient  affidavits  to  be 
neutral,  it  is  presumed  to  belong  to  the  enemy.  Where  the  property  appears  from  evidence 
not  on  board  the  ship,  the  captor  is  justified  in  bringing  her  in,  and  excused  paying  costs, 
because  lie  is  not  in  fault ;  or,  according  to  the  circumstances  of  the  case,  may  be  justly  en- 
titled to  receive  his  costs. 

"  If  the  sentence  of  the  court  of  admiralty  is  thought  to  be  erroneous,  there  is  in  every 
maritime  country  a  superior  court  of  review,  consisting  of  the  most  considerable  persons,  to 
which  the  parties  who  think  themselves  aggrieved  may  appeal ;  and  this  superior  court  judges 
by  the  same  rule  which  governs  the  court  of  admiralty,  viz.,  the  law  of  nations,  and  the 
treaties  subsisting  with  that  neutral  power,  whose  subject  is  a  party  before  them. 

"  If  no  appeal  is  ofiered,  it  is  an  acknowledgment  of  the  justice  of  the  sentence  by  the 
parties  themselves,  and  conclusive. 

"This  manner  of  trial  and  adjudication  .is  supported,  alluded  to,  and  enforced,  by  many 
treaties. 

"  In  this  method,  all  captures  at  sea  were  tried,  during  the  last  war,  by  Great  Britain, 
France,  and  Spain,  and  submitted  to  by  the  neutral  powers.  In  this  method,  by  courts  of 
admiralty  acting  according  to  the  law  of  nations,  and  particular  treaties,  all  captures  at  sea 
have  immeinorially  been  judged  of  in  everj'  country  of  Europe.  Any  other  method  of  trial 
would  be  manifestly  unjust,  absurd,  and  impracticable." 

Such  are  the  principles  which  govern  the  proceedings  of  the  prize  courts. 

The  following  are  the  measures  which  ought  to  be  taken  by  the  captor,  and  by  the  neu- 
tral claimant  upon  a  ship  and  cargo  being  brought  in  as  prize : 

The  cantor  immediately  upon  bringing  his  prize  into  port,  sends  up  or  delivers  upon  oath 
to  the  registry  of  the  court  of  admiralty  all  papers  found  on  board  the  captured  ship.  In 
the  course  of  a  few  days,  the  examinations  in  preparatory  of  the  captain  and  some  of  the 
crew,  of  the  captured  ship,  are  taken  upon  a  set  of  standing  interrogatories,  before  the 
cominissiouers  of  the  port  to  which  the  prize  is  brought,  and  which  are  also  forwarded  to 
the  registry  of  the  admiralty  as  soon  as  taken.  A  monition  is  extracted  by  the  captor  from 
the  registry,  and  served  upon  the  royal  exchange,  notifying  the  capture,  and  calling  upon 
all  persons  interested  to  appear  and  show  cause  wh}'  the  ship  and  goods  should  not  be  con- 
demned. At  the  expiration  of  twenty  days,  the  monition  is  returned  into  the  registry  with 
a  certificate  of  its  service,  and  if  any  claim  has  licon  given,  tiio  cause  is  then  readj-  for  l::ar- 
lag,  upon  the  evidence  arising  out  of  the  ship's  papers,  and  preparatory  examinations. 


APPENDIX.  473 

The  measures  taken  on  the  part  of  the  neutral  master  or  proprietor  of  the  »argo,  are  as 
follows : 

Upon  licing  brought  into  port,  the  master  usually  makes  a  protest,  which  he  forwards  to 
London,  as  instructions  (or  with  such  further  directions  as  he  thinks  proper)  either  to  the 
correspondent  of  his  owners,  or  to  the  consul  of  his  nation,  in  order  to  claim  the  ship,  and 
such  parts  of  the  cargo  as  belong  to  his  owners,  or  with  which  he  was  particularly  in- 
trusted. Or  the  master  himself,  as  soon  as  he  has  undergone  his  examination,  goes  to  Loii- 
don  to  take  tlie  necessary  steps. 

The  master,  correspondent,  or  consul,  applies  to  a  proctor,  who  prepares  a  claim  sup- 
ported by  an  affidavit  of  the  claimant,  stating  briefly,  to  whom  as  he  belie^'es,  the  ship  and 
goods  claimed,  belong,  and  that  no  enemy  has  any  right  or  interest  in  them.  Security  must 
be  given  to  the  amount  of  sixty  pounds  to  answer  costs,  if  the  case  should  appear  so  grossly 
fraudulent  on  the  part  of  the  claimant  as  to  subject  him  to  be  condemned  therein. 

If  the  captor  has  neglected  in  the  mean  time  to  take  the  usual  steps  (but  which  seldom  hap- 
pens, as  he  is  strictly  enjoined  both  by  his  instructions  and  by  the  prize  act  to  proceed  im- 
mediately to  adjudication),  a  process  issues  against  him  on  the  apphcation  of  the  claimant's 
proctor,  to  bring  in  the  ship's  papers  and  preparatory  examinations,  and  to  proceed  in  the 
usual  way. 

As  soon  as  the  claim  is  given,  copies  of  the  ship's  papers  and  examinations  are  procured 
from  the  registry,  and  upon  return'  of  the  monition  the  cause  may  be  heard.  It  however 
seldom  happens  (owing  to  the  great  pressure  of  business,  especially  at  the  commencement 
of  a  war)  that  causes  can  possibly  be  prepared  for  hearing  immediately  upon  tlie  expiration 
of  the  time  for  the  return  of  the  monition.  In  that  case,  each  cause  must  necessarih''  take 
its  regular  turn :  correspondent  measures  must  be  taken  by  the  neutral  master,  if  carried 
within  the  jurisdiction  of  a  vice-admiralty  court,  by  giving  a  claim  supported  by  his  affida- 
vit, aud  offering  security  for  costs,  if  the  claim  should  be  pronounced  grossly  fi'audnlent 

If  the  claimant  be  dissatisfied  with  the  sentence,  his  proctor  enters  an  appeal  in  tlie  regis- 
try of  the  court  where  the  sentence  was  given,  or  before  a  notary  public  (wliich  regularly 
should  be  entered  within  fourteen  days  afler  the  sentence)  and  he  afterward  applies  at  the 
registry  of  the  lords  of  appeal  in  prize  causes  (which  is  held  at  the  same  place  as  the  regis- 
try of  the  high  court  of  admiralty)  for  an  instrument  called  an  inhibition,  and  which  should 
be  taken  out  within  three  months,  if  the  sentence  be  in  the  high  court  of  admiralty,  and 
within  nine  months,  if  in  a  vice-admiralty  court,  but  may  be  taken  out  at  later  periods,  if  a 
reasonable  cause  can  be  assigned  for  the  delay  that  has  intervened.  This  instrument  directs 
the  judge  whose  sentence  is  appealed  from,  to  proceed  no  further  in  the  cause ;  it  directs 
the  registrar  to  transmit  a  copy  of  all  the  proceedings  of  the  inferior  court ;  and  it  directs 
the  party  who  has  obtained  the  sentence  to  appear  before  the  superior  tribunal  to  answer  to 
the  appeal.  On  applying  for  tliis  inhibition,  security  is  given  on  the  part  of  the  appellant, 
to  the  amount  of  two  hundred  pounds,  to  answer  costs,  in  case  it  should  appear  to  the 
court  of  appeals,  that  the  appeal  is  merely  vexatious.  The  inhibition  is  to  be  served  upon 
the  judge,  the  registrar,  and  the  adverse  party  aud  his  proctor,  by  showing  the  instrument 
under  seal,  and  delivering  a  note  or  copy  of  the  contents.  K  the  party  cannot  be  found,  and 
the  proctor  will  not  accept  the  service,  the  instrument  is  to  be  served  ^'viis  etmodib;"  that 
is,  by  affixing  it  to  the  door  of  the  last  place  of  residence,  or  bj^  hanging  it  upon  the  pillars 
of  the  royal  exchange.  That  part  of  the  process  above  described,  which  is  to  be  executed 
abroad,  may  be  performed  by  any  person  to  whom  it  is  committed,  and  the  formal  jiart  at 
home  is  executed  by  the  officer  of  the  court.  A  certificate  of  the  service  is  endorsed  upon 
the  back  of  the  instrument,  sworn  before  a  surrogate  of  the  superior  court,  or  before  a 
notary  public,  if  the  service  is  abroad. 

If  the  cause  be  adjudged  in  a  vice-admiralty  court,  it  is  usual,  upon  entering  an  appeal 
there,  to  procure  a  copy  of  the  proceedings,  which  the  appellant  sends  over  to  his  corre- 
spondent in  England,  who  carries  it  to  a  proctor,  and  the  same  steps  are  taken  to  procure  and 
serve  the  inhibition,  as  where  the  cause  has  been  adjudged  in  the  high  court  of  admiralty. 
But  if  a  copy  of  the  proceedings  cannot  be  procured  in  due  time,  an  inhibition  may  be  ob- 
tained, by  sending  over  a  copy  of  the  instrument  of  appeal,  or  by  writing  to  the  correspon- 
dent an  account  of  the  time  and  substance  of  the  sentence. 

Upon  an  appeal,  fresh  evidence  may  be  introduced  if,  upon  hearing  the  cause,  the  lords 
of  appeal  shall  be  of  opinion,  that  the  case  is  of  such  doubt,  as  that  fartlier  proof  ought  to 
have  been  ordered  by  the  court  below. 


474  APPENDIX. 

Further  proof  uPuallT  consists  of  affidavits  made  by  the  asserted  proprietors  of  the  goods, 
in  which  they  are  sometimes  joined  by  their  clerks  and  others  acquainted  with  the  trans- 
action and  with  the  real  jiropcrty  of  the  goods  claimed.  In  corroboration  of  these  affidavits 
may  be  annexed  original  correspondence,  duplicates  of  bills  of  lading,  invoices,  extracts 
from  books,  etc.  These  papers  must  be  proved  by  the  affidavits  of  persons  wlio  can  speak 
to  their  a\ithentioity.  And  if  copies  or  extracts,  they  should  be  collated  and  certified  by 
public  notaries.  The  affidavits  are  sworn  before  the  magistrates  or  others  competent  to  ad- 
minister oaths  in  the  country  where  they  are  made,  and  authenticated  by  a  certificate  from 
the  British  consul. 

The  degree  of  proof  to  bo  required  depends  upon  the  degree  of  suspicion  and  doubt  that 
belongs  to  the  cnse.  In  cases  of  heavy  suspicion  and  great  importance,  the  court  may  or- 
der what  is  called  '•plea  and  proof,"  that  is,  instead  of  admitting  affidavits  and  documents 
introduced  by  the  claimants  only,  each  party  is  at  liberty  to  allege  in  regular  pleadings  such 
circumstances  as  may  tend  to  acquit  or  to  condemn  the  capture,  and  to  examine  witnesses 
in  support  of  the  allegations,  to  whom  the  adverse  party  may  administer  interrogatories. 
The  depositions  of  the  witnesses  are  taken  in  writing;  if  the  witnesses  are  to  be  examined 
abroad,  a  commission  issues  for  that  purpose ;  but  in  no  case  is  it  necessary  for  them  to 
come  to  England.     These  solemn  proceedings  are  not  often  resorted  to. 

Standing  commissions  may  be  sent  to  America  for  the  general  purpose  of  receiving  exam- 
inations of  witnesses  in  all  cases  where  the  court  may  find  it  necessary  for  the  purposes  of 
justice,  to  decree  an  inquiry  to  be  conducted  in  that  manner. 

With  respect  to  captures  and  condemnations  at  Martinico,  which  are  the  subjects  of 
another  inquiry  contained  in  your  note,  we  can  only  answer  in  general,  that  we  are  not  in- 
formed of  the  particulars  of  such  captures  and  condemnations,  but,  as  we  know  of  no  legal 
court  of  admiralty  established  at  Martinico,  we  are  clearly  of  opinion  that  the  legality  of  any 
prizes  taken  there,  must  be  tried  in  the  high  court  of  the  admiralty  of  England,  upon  claims 
given,  in  the  manner  above  described,  by  such  persons  as  may  think  themselves  aggrieved 
by  the  said  captures. 

We  have  the  honor  to  be,  etc., 

[Signed]  WILLIAM  SCOTT, 

JOHN  NICHOLL. 
CoMHONS,  September  10<A,  1794 


No.  II. 


THE   PRIZE    RULES   OF  THE  UNITED    STATES    DISTRICT   COURT   FOR   THE 
SOUTHERN  DISTRICT  OF  NEW  YORK. 

Rule  1. — There  shall  be  issued,  under  the  seal  and  authority  of  this  court,  commissions 
to  such  persons  as  the  court  shall  think  fit,  appointing  them  severally  commissioners  to  take 
examinations  of  witnesses  in  prize  causes  in preimratorio,  on  the  standing  interrogatories, 
which  have  been  settled  and  adopted  by  this  court,  and  all  other  depositions  which  they  are 
empowered  to  require,  and  to  discharge  such  other  duties  in  relation  to  ships,  or  vessels,  or 
property  brought  into  this  district,  as  prize,  as  shall  be  designated  by  the  said  commission- 
ers, and  the  rules  and  orders  of  this  court. 

Rri.E  2. — The  captors  of  any  property  brought  into  this  district  as  prize,  or  some  one  on 
their  behalf,  shall,  without  delay,  give  notice  to  the  district  judge,  or  to  one  of  the  com- 
missioners aforesai<l,  of  the  arrival  of  the  property,  and  of  the  place  where  the  same  may  be 
found. 

Rule  3. — Upon  the  receipt  of  notice  thereof  from  the  captors,  or  district  judge,  a  com- 
missioner shall  repair  to  the  place  where  the  said  prize  property  then  is ;  and  if  the  same  be 
a  ship,  or  vessel,  or  if  the  property  be  on  board  a  ship  or  vessel,  he  shall  cause  the  said 
ship  or  vessel  to  be  safely  moored  in  sufficient  depth  of  water,  or  in  soft  ground. 

Rule  4. — The  commissioner  shall,  in  case  the  prize  be  a  ship  or  vessel,  examine  whether 


APPENDIX. 


475 


bulk  has  been  broken ;  and  if  it  be  found  that  bulk  has  been  broken,  one  of  the  said  com- 
missioners shall  take  information  upon  what  occasion,  or  for  what  cause,  the  same  was  done. 
If  the  property  captured  be  not  a  ship  or  vessel,  or  in  a  ship  or  vessel,  he  shall  examine  the 
chests,  packages,  boxes,  or  casks,  containing  the  subject  captured,  and  shall  ascertain  wheth- 
er the  same  has  been  opened,  and  shall,  in  every  case,  examine  whether  any  of  the  prop- 
erty originally  captured  has  been  secreted  or  taken  away  subsequently  to  the  capture. 

iluLE  5. — The  commissioner  in  no  case  shah  leave  the  captured  property  until  he  secure 
the  same  by  seals  upon  tlie  hatches,  doors,  chests,  bales,  boxes,  casks,  or  packages,  as  the 
case  may  require,  so  that  they  cannot  be  opened  without  breaking  the  said  seals  ;  and  the 
said  seals  shall  not  be  broken,  or  the  property  removed,  without  the  special  order  of  the 
court,  excepting  in  case  of  fire  and  tempest,  or  of  absolute  necessity. 

Rule  6. — If  the  captured  property  be  not  a  vessel,  or  on  board  a  vessel,  the  commissioner 
shall  take  a  detailed  account  of  the  particulars  thereof,  and  shaU  cause  the  same  to  be  de- 
posited, under  the  seals  as  aforesaid,  in  a  place  of  safety,  there  to  abide  the  order  or  decree 
of  this  court. 

Rule  7. — If  no  notification  shall,  within  reasonable  time,  be  given  by  the  captors,  or  by 
any  person  in  their  behalf,  of  any  property  which  may  be  brought  as  prize  within  this  dis- 
trict, and  the  commissioners,  or  either  of  them,  shall  become  informed  thereof  by  any 
means,  it  shall  be  the  duty  of  the  said  commissioners,  or  one  of  them,  to  repair  to  the  place 
where  such  property  is,  and  to  proceed  in  respect  to  the  same  as  if  notice  had  been  given  by 
the  captors. 

Rule  8. — The  captor  shall  deliver  to  tlie  judge — at  the  time  of  such  notice,  or  to  the 
commissioner  or  commissioners,  when  he  or  they  sliall,  conformably  to  tiie  foregoing  rule, 
repair  to  the  place  where  such  captured  property  is,  or  at  such  other  time  as  the  said  com- 
missioners, or  either  of  them,  sliall  require  the  same — all  such  papers,  passes,  sea-briefs,  char- 
ters, bills  of  lading,  cockets,  letters,  and  other  documents  and  writings,  as  shall  have  been 
found  on  board  the  captured  ship,  or  which  have  any  reference  to.  or  connection  with  the 
captuied  property,  and  which  are  in  the  possession,  custody,  or  power  of  the  captors. 

Rule  9. — The  said  papers,  documents  and  writings,  shall  be  regularly  marked  and  num- 
bered by  a  commissioner,  and  the  captor,  chief  officer,  or  some  other  person  who  was  pres- 
ent at  the  taking  of  the  prize,  and  saw  that  such  documents,  papers  and  writings,  were 
found  with  the  prize,  must  make  a  deposition  before  one  of  the  said  commissioners,'  that 
they  have  delivered  up  the  same  to  the  judge  or  commissioner  as  they  were  found  or  re- 
ceived, without  any  fraud,  subduction,  or  embezzlement.  If  any  documents,  papers  or  writ- 
ings, relative  to,  or  connected  with  the  captured  property,  are  missing  or  wanting,  the  de- 
ponent shall,  in  his  said  deposition,  account  for  the  same,  according  to  the  best  of  his  knowl- 
edge, information  and  belief 

Rule  10. — The  deponent  must  further  swear,  that  if,  at  any  time  thereafter,  and  before 
the  final  condemnation  or  acquittal  of  the  said  property,  any  further  or  other  papers  relating 
to  the  said  captured  property  shaU  be  found  or  discovered,  to  the  knowledge  of  the  depo- 
nent, they  shall  also  be  delivered  up,  or  information  thereof  given  to  the  commis.sioners  or  to 
this  court,  which  deposition  shall  be  reduced  to  writing  by  the  commissioner,  and  shall  be 
transmitted  to  the  clerk  of  the  court,  as  hereinafter  mentioned. 

Rule  11. — When  the  said  documents,  papers  and  writings,  are  delivered  to  a  commissioner, 
he  shall  retain  the  same  till  after  the  examination  in  preparatorio  shah  have  lieen  made  by 
him,  as  is  hereafter  provided,  and  then  he  shall  transmit  the  same  with  the  same  affidavit  in 
relation  thereto,  the  preparatory  examinations,  and  the  information  he  maj'  have  received  in  re- 
gard to  the  said  captured  property,  under  cover  and  under  his  seal,  to  this  court,  addressed 
to  the  clerk  thereof,  and  expressing  on  the  said  cover  to  what  captured  property  the  docu- 
ments relate,  or  who  claim  to  be  the  captors  thereof,  or  from  whom  he  received  the  informa- 
tion of  the  capture ;  which  said  cover  shall  not  be  opened  without  the  order  of  the  court. 

Rule  12. — Within  three  days  after  the  captured  property  shall  have  been  brought  within 
the  jurisdiction  of  this  court,  the  captor  shall  produce  to  one  of  the  commissioners  three  or 
four,  if  so  many  there  be,  of  the  company  or  persons  who  were  captured  with,  or  who  claim 
the  said  captured  property;  and  in  case  the  capture  be  a  vessel,  the  master  and  mate,  or 
supercargo,  if  brought  in,  must  ahvays  be  two,  in  order  that  they  may  be  o-camined  by  the 
commissioner  in  preparatorio  upon  the  standing  interrogatories. 

Rule  13. — In  the  examination  of  witnesses  in  preparatorio,  the  commissioner  shall  use 
no  other  interrogatories  but  the  standing  interrogatories,  unless  special  interrogatories  are 


476  APPENDIX. 

directed  by  the  coun.  He  shall  write  down  the  answer  of  every  witness  separately  to  each 
interrogatory,  and  not  to  several  interrogatories  together;  and  the  parties  may  personally, 
or  bj'  tlieir  agents,  attend  the  exaniiuatiou  of  witnesses  before  the  commissioners;  but  they 
shall  liave  no  right  to  interfere  with  the  examination  by  putting  questions  or  objecting  to 
questions;  nor  to  take  notes  of  the  proceedings  before  the  commissioner,  to  be  used  other- 
wise than  before  the  court.  All  objections  to  the  regularity  or  legality  of  the  proceedings 
of  the  commissioners  nmst  be  made  to  the  court. 

Rule  H. — When  a  witness  declares  he  cannot  answer  to  any  interrogatory,  the  commis- 
sioner shall  admonish  the  witness  that  by  virtue  of  his  oath,  taken  to  speak  the  truth,  and 
nothing  but  the  truth,  he  must  answer  to  the  best  of  his  knowledge,  or  when  he  does  not 
know  absolutely,  then  to  answer  to  the  best  of  his  belief  concerning  any  one  fact. 

Rule  ]  5. — The  witnesses  are  to  be  examined  separately,  and  not  in  presence  of  each 
other,  and  they  may  be  kept  from  all  communication  with  the  parties,  their  agents  or  coun- 
sel, during  the  examination.  The  commissioners  will  see  that  every  question  is  understood 
by  the  witness,  and  will  take  their  exact,  clear,,  and  explicit  answers  thereto ;  and  if  any 
witness  refuses  answer  at  all.  or  to  answer  fully,  the  examining  commissioner  is  forthwith 
to  certify  the  facts  to  the  court. 

Rule  IG. — The  captors  must  produce  aU' their  witnesses  ii>  succession,  and  cannot,  after 
the  commissioners  have  transmitted  the  examination  of  a  part  of  the  crew  to  the  judge, 
be  allowed  to  have  others  examined  without  the  special  order  of  the  court ;  and  the  exam- 
ination of  every  witness  shall  be  begun,  continued,  and  finished  in-  the  same  day,  and  not  at 
dilVerent  times.  Copies  of  the  standing  interrogatories  .shall  not  be  returned  bj'  the  commis- 
sioner with  the  examinations,  but  it  shall  be  sufficient  for  the  answer  of  the  witnesses  to  re- 
fer to  the  standing  interrogatories  by  corresponding  numbers. 

Rule  17. — Before  any  witness  shall  be  examined  on  the  standing  interrogatories,  the  com- 
missioner shall  administer  to  him  an  oath  in  the  following  form  :  "  You  shall  true  answer 
make  to  all  such  questions  as  shall  be  asked  of  you  on  these  interrogatories,  and  therein  you 
shall  speak.the  whole  truth,  and  nothing  but  the  truth,  so  help  you  God."  If  the  witness 
is  conscientiously  averse  to  swearing,- an  affirmation  to  the  same  effect  shall  be  administered 
to  him. 

Rule  18. — Whenever  the  ship's  company,  or  any  part  thereof,  of  a  captured  vessel,  are 
foreigners,  or  speak  only  a  foreign  language,  the  commissioner  taking  the  examination  may 
summon  before  him  competent  interpreters,  and  put  to  them  an  oath,  well  and  truly  to  in- 
terpret to  the  witness  the  oath  administered  to  him,  and  the  interrogations  propounded,  and 
well  and  trulj'  to  interpret  to  the  commissioners  the  answers  given  by.the  witness  to  the  re- 
spective interrogatories. 

Rule  19. — Tlie  examination  of  each  witness  on  the  standing  interrogatories  shall  be  re- 
turned according  to  the  following  form : 

"Deposition  of  A  B,  a  witness  produced,  sworn  and  examined  in  preparatorio,  on  the 
day  of  in  the  year  at  the  of  on  the 

standing  interrogatories  established  by  the  district  court  of  the  United  States  for  the  south- 
ern district  of  Xew-York;    the  said  witness  having  been  produced  for  the  purpose  of  such 
examination  by  C  D,  in  behalf  of  the  captors  of  a  certain  ship  or  vessel  called  the 
(or  of  certain  goods,  wares,  and  merchandise,  as  the  case  may  be.) 

"Ist.  To  the  first  interrogatory  the  deponent  answers,  that  he  was  born  at  &c. 

"2d.  To  the  second  interrogatory  the  deponent  answers,  that  he  was  present  at  thertime  of 
the  taking,  &c." 

Rule  20. — "When  the  interrogatories  have  all  been  answered  by  a  witness,  he  shall  sign 
his  deposition,  and  the  commissioner  shall  put  a  certificate  thereto  in  the  usual  form,  and 
subscribe  his  name  to  the  same. 

Rule  21. — Xo  person  having  or  claiming  any  interest  in  the  captured  property,  or  having 
any  interest  in  any  ship  having  letters  of  marque  or  commissions  of  war,  shall  act  as  a  com- 
missioner. Nor  shall  a  commissioner  act  either  as  proctor,  advocate,  or  counsel,  either  for 
captors  or  claimants,  in  any  prize  cause  whatever. 

Rule  22. —  If  the  cajitain  or  prize-master  neglect  or  refuse  to  give  up  and  deliver  to  the 
commissioners  the  documents,  papers,  and  writings  relating  to  the  captured  property,  ac- 
cording to  tliese  rules,  or  refuse  or  neglect  to  produce,  or  cause  to  be  produced,  witnesses  to 
be  examined  i'l  /irt/iaralorio,  witliin  three  days  after  the  arrival  of  the  captured  property 
within  the  jurisdiction  of  this  court,  or  shall  otherwise  unnecessarily  delay  the  production  of 


APPENDIX. 


47*7 


the  said  documents,  papers,  or  writings,  the  coniTnispioners,  or  one  of  them  nearest  to  the 
place  where  the  captured  property  may  be,  or  before  whom  the  examination  in  preparatorio 
may  have  been  already  begun,  shaU  give  notice  in  writing  to  the  delinquent,  to  forthwith 
produce  the  said  documents,  papers,  and  writings,  and  to  bring  forward  his  witnesses ;  and 
if  he  shaU  neglect  or  delay  so  to  do  for  the  period  of  twenty-four  hours  thereafter,  such  com- 
missioner shall  certify  the  same  to  this  court,  that  such  proceedings  may  thereupon  be  had 
as  justice  may  require. 

Rule  23. — If  within  twenty-four  liours  after  the  arrival  within  this  district  of  any  cap- 
tured vessel,  or  of  any  property  taken  as  prize,  the  captors,  or  their  agents,  shall  not  give 
notice  to  the  judge  or  a  commissioner,  pursuant  to  the  provisions  herein  made,  or  shall  not, 
two  days  after  such  notice  given,  produce  witnesses  to  be  examined  in  preparatorio,  then 
any  person  claiming  the  captured  property  and  restoration  thereof,  may  give  notice  to  the 
judge  or  the  commissioners  as  aforesaid,  of  the  arrival  of  the  said  captured  property ;  and 
thereupon  such  proceedings  may  be  had  by  the  commissioners  in  respect  to  the  said  proper- 
ty, and  relative  to  the  documents,  papers,  and  writings  connected  with  the  said  capture, 
which  the  claimant  may  have  in  his  possession,  custody,  or  power,  and  relative  to  the  ex- 
amination of  witnesses  in  j^rtparatorio,  as  near  as  may  be,  as  is  before  provided  for  in  cases 
where  the  captors  shall  give  notice  and  examine  in  preparatorio.  And  the  said  claimant 
may  in  such  cases  file  his  libel  for  restitution,  and  proceed  thereon  according  to  the  rules 
and  practice  of  this  court. 

Rule  24. — As  soon  as  may  be  convenient,  after  the  captured  property  shall  have  been 
brought  within  the  jurisdiction  of  this  court,  a  libel  maybe  filed,  and  a  monition  shall  there- 
upon be  issued,  and  such  proceedings  shall  be  had  as  are  usual  in  conformity  to  the  practice 
of  this  court,  in  cases  of  vessels,  goods,  wares,  and  merchandise  seized  as  forfeited,  in  virtue 
of  any  revenue  law  of  the  United  States. 

Rule  25. — In  all  cases,  by  consent  of  captor  and  claimant,  or  upon  attestation  exhibited 
upon  the  part  of  the  claimant  only,  without  consent  of  the  captor,  that  the  cargo  or  part 
thereof  is  perishing  or  perishable,  the  claimant  specifying  the  quantity  and  quality  of  the 
cargo,  may  have  the  same  delivered  to  him,  on  giving  bail  to  answer  the  value  thereof  if 
condemned,  and  further  to  abide  the  event  of  the  suit ;  such  bail  to  be  approved  of  by  the 
captor,  or  otherwise  the  persans  who  give  security  swearing  themselves  to  be  severally  and 
truly  worth  the  sum  for  which  they  give  security.  If  the  parties  cannot  agree  upon  the 
value  of  the  cargo,  a  decree  or  commission  of  appraisement  may  issue  from  the  court  to  as- 
certain the  value. 

Rule  26. — In  cases  where  there  is  no  claim,  an  affidavit  being  exhibited  on  the  part  of 
the  captor  of  such  perishing  or  perishable  cargo,  specifying  the  quantity  and  quality  thereof, 
the  captor  may  have  a  decree  or  commission  of  appraisement  and  sale  of  sucli  cargo,  the 
proceeds  thereof  to  be  brought  into  court,  to  abide  the  further  orders  of  the  court. 

Rule  27. — The  name  of  each  cause  shall  be  entered  by  tlie  clerk  upon  the  docket  for 
hearing  in  their  order,  according  to  the  dates  of  the  returns  of  the  monitions,  and  lists  of  the 
causes  ready  for  hearing  are  to  be  constantly  hung  up  in  the  clerk's  ofiBce,  for  public  inspec- 
tion. 

Rule  28. — In  all  cases  where  a  decree  or  commission  of  appraisement  and  sale  of  any  ship 
and  cargo,  or  either  of  them,  shall  have  issued,  no  question  respecting  the  adjudication  of 
such  ship  and  goods,  or  either  of  them,  as  to  freight  or  expenses,  shall  be  heard  till  the  said 
decree  or  commission  shaU  be  returned,  with  the  account  of  sales,  and  the  proceeds  accord- 
ing to  such  account  of  sales,  be  paid  into  court,  to  abide  the  order  of  the  court  in  respect 
thereto. 

Rule  .29. — After  the  examination,  taken  in  preparatorio  on  the  standing  interrogatories, 
is  brought  into  the  clerk's  office,  and  the  monition  has  issued,  no  further  or  other  examin- 
ations upon  the  said  interrogatories  shall  be  taken,  or  affidavits  received,  without  the  special 
directions  of  the  judge,  upon  due  notice  given. 

Rule  30. — None  but  the  captors  can,  in  the  first  instance,  invoke  papers  from  one  cap- 
tured vessel  to  another,  nor  can  it  be  done  without  the  special  mandate  of  the  judge;  and, 
in  case  of  its  allowance,  only  extracts  from  the  papers  are  to  be  used. 
'  Rule  31. — The  invocation  shall  only  be  allowed  on  affidavit  on  the  part  of  the  captors, 
satisfying  the  court  that  such  papers  are  material  and  necessary. 

HuLE  32. — Application  for  permission  to  invoke  must  be  on  service,  at  least  two  days 
previously,  of  notice  thereof)  and  copy  -''  the  affidavit  on  the  claimants,  or  their  agent  (if 


478  Arp:.xx)rx. 

known  to  be  in  this  port) ;  and  after  invocation  allowed  to  the  captors,  the  claimants,  by 
permission  of  the  judge,  for  sufficient  cause  shown,  may  use  other  extracts  of  the  same  pa- 
pers in  explanation  of  the  parts  invoked. 

RutE  33. — But  when  the  same  claimants  intervene  for  different  vessels,  or  for  goods, 
wares,  or  merchandise  captured  on  board  different  vessels,  and  proofs  are  taken  in  the  re- 
spective causes,  and  the  causes  are  on  the  dockets  for  trial  at  the  same  time,  the  captors 
may,  on  the  hearing  in  court,  invoke,  of  course,  in  either  of  such  causes,  the  proofs  taken  in 
any  other  of  thorn ;  the  claimants,  after  such  invocation,  having  liberty  to  avail  themselves 
also  of  the  proofs  in  the  cause  invoked. 

RCLE  34. — !u  ail  motions  for  commissions,  and  decrees  of  appraisement  and  sale,  the 
time  shall  be  specified  within  which  it  is  prayed  that  the  commissions  or  decrees  shall  be 
made  returnable. 

RfLE  35. — The  commissioners  shall  make  regular  returns  on  the  days  in  which  their 
commis.sion  or  decrees  are  returnable,  stating  the  progress  that  has  been  made  in  the  exe- 
cution of  the  commission  or  decrees,  and,  if  necessary,  praying  an  enlargement  of  the  time 
for  tlie  completion  of  the  business. 

Rule  36. — The  commissions  shall  bring  in  the  proceeds  which  have  been  collected  at  the 
time  of  their  returns ;  and  they  may  be  required  from  time  to  time  to  make  partial  returns 
of  such  sums  only  as  are  necessary  to  cover  expenses. 

Rule  37. — On  the  returns  of  commissions  or  decrees,  the  commissioners  or  the  marshal 
must  bring  in  all  the  vouchers  within  their  control. 

Rule  38. — .\.ll  moneys  brought  into  court  in  prize  causes  shall  be  forthwith  paid  into 
such  Ijank,  in  the  city  of  New  York,  as  shall  be  appointed  for  keeping  the  moneys  of  the 
court,  and  shall  only  be  drawn  out  on  the  specific  orders  of  the  court,  in  favor  of  the  per- 
sons respectively  having  right  thereto,  or  then-  agents  or  representatives,  duly  authorized 
to  receive  the  same. 

Rule  39. — .\t  cverj'  stated  term  of  the  court,  the  clerk  shall  exhibit  to  the  court  a  state- 
ment of  all  mfine\'S  paid  into  court  in  prize  cases,  designating  the  amount  paid  in  each  par- 
ticular case,  and  at  what  time. 

Rule  40. — Tlie  statement,  when  approved  by  the  court,  shall  be  filed  of  record  in  the 
clerk's  office,  and  be  open  to  the  inspection  of  all  parties  interested,  and  certified  copies 
thereof  shall  be  furnished  by  the  clerk,  on  request,  to  any  party  in  interest,  his  proctor  or 
advocate. 

Rule  41. — When  property  seized  as  prize  of  war  is  delivered  upon  bail,  a  stipulation,  ac- 
cording to  the  course  of  the  admiralty,  is  to  be  taken  for  double  its  value. 

Rule  42. — Every  claim  interposed  must  be  by  the  parties  in  interest,  if  within  convenient 
distance — or  in  their  absence,  by  their  agent  or  the  principal  officer  of  the  captured  ship — 
and  must  bo  accompanied  by  a  test  aflidavit,  stating  briefly  the  facts  respecting  the  claim, 
and  its  verity,  and  how  the  deponent  stands  connected  with  or  acquired  knowledge  of  it. 
The  same  party  who  may  intervene  is  also  competent  to  attest  to  the  affidavit. 

Rule  43. — The  captors  of  property  brought  in  or  held  as  prize,  or  which  may  have  been 
carried  into  a  foreign  port,  and  there  delivered  upon  bail  by  the  captors,  sliall  forthwith  libel 
the  same  in  fact,  and  sue  out  the  proper  process.  Tiie  first  process  may,  at  the  election  of 
the  party,  be  a  warrant  for  the  arrest  of  the  property  or  person,  to. compel  a  stipulation  to 
abide  the  decree  of  the  court,  or  a  monition.  - 

Rule  44. — The  monitions  shall  be  made  returnable  in  ten  days,  and  if  the  property  seized 
as  prize  is  in  port,  shall  be  served  in  the  same  way  as  in  the  case  of  monitions  issued  on  the 
instance  side  of  the  court  of  admiralty  on. seizure  for  forfeiture  under  the  revenue  laws.  In 
case  the  property  daimod  as  prize  is  not  in  port,  then  the  monition  is  to  be  served  on  the 
parties  in  interest,  their  agent  or  proctor,  if  known  to  reside  in  the  district,  otherwise  by 
publication  daily  in  one  of  the  newspapers  of  this  city,  for  ten  successive  days  preceding  the 
return  thereof. 

Rule  4."). — Whenever  the  jurisdiction  of  the  court  is  invoked  upon  matters  Bs  incident  to 
prize,  except  as  to  the  distribution  of  prize  moncj'',  there  must  be  distinct  articles  or  allega- 
tions in  that  behalf  in  tJic  original  lil)el  or  claim  on  the  part  of  the  party  seeking  relief  I5ut 
in  case  the  matter'  have  arisen  or  ttoeome  known  to  the  party  subsequent  to  presenting  his 
libel  or  claim,  the  court  will  allow  him  to  file  the  necessary  amendments. 

Rule  46. — No  permission  will  be  granted  to  either  party  to  introduce  further  proofs  untU 
iftor  the  hearing  of  the  cause  upon  the  proofs  originally  taken. 


APPEISTDIX. 


479 


Rule  4*7. — ^Tn  case  of  captures  by  the  public  armed  vessels  of  tbe  United  States,  and  a 
proceeding  for  condemnation  against  the  property  seized  as  prize  jure  belli,  or  in  the  nature 
of  prize  of  war,  under  any  act  of  Congress,  the  name  of  the  officer  under  whose  authority 
the  capture  was  made  must  be  inserted  in  the  libel. 

Rule  43. — A  decree  of  contumacy  may  be  had  against  any  party  not  obeying  the  orders 
or  process  of  the  court,  duly  served  upon  him ;  and  thereupon  an  attachment  may  be  sued 
out  against  him.  But  no  constructive  service  of  a  decree  or  process  viis  et  modis,  or  publica 
citatio,  will  be  sufBcient,  unless  there  has  been  a  publication  thereof  in  a  daily  paper  in  this 
city,  at  least  ten  days  immediately  preceding  the  motion  for  an  attachment. 

Rule  49. — When  damages  are"awarded  by  the  court,  the  party  entitled  thereto  may  move 
for  the  appointment  of  three  commissioners  to  assess  the  same ;  two  persons  approved  by 
the  court  will  thereupon  be  associated  with  a  standing  commissioner  of  the  circuit  court,  the 
clerk  or  deputy  clerk  of  this  court,  if  not  interested  in  the  matter,  whose  duty  it  shall  be  to 
estimate  and  compute  the  damages,  in  conformity  to  the  principles  of  the  decree,  and  return 
a  specific  report  to  the  court  of  the  amount  of  damages,  and  the  particular  items  of  which 
they  are  composed. 

Rule  50. — -Any  party  aggrieved  may  have  such  assessment  of  damages  reviewed  in  a  sum- 
mary miinner  by  the  court,  before  final  decree  rendered  thereon,  on  giving  two  days'  previ- 
ous notice  to  the  proctor  of  the  party  in  whose  favor  the  assessment  is  made,  of  the  excep- 
tions he  intends  taking,  and  causing  to  be  brought  before  the  court  the  evidence  given  the 
commis-sioners  in  relation  to  the  particular  excepted  to. 

Rule  51. — Every  appeal  from  the  decrees  of  this  court  must  be  made  within  ten  days  from 
the  time  the  decree  appealed  from  is  entered,  otherwise  the  party  entitled  to  the  decree  may 
proceed  to  have  it  executed.  Xo  appeal  shall  stay  the  execution  of  a  decree,  unless  the  par- 
ty, at  the  time  of  entering  the  appeal,  gives  a  stipulation,  with  two  sureties,  to  be  approved 
by  the  clerk,  in  the  sum  of  two  hundred  and  fifty  dollars,  to  pay  all  costs  and  damages  that 
may  be  awarded  against  him,  and  to  prosecute  the  appeal  to  effect. 

Rule  52. — If  the  party  appealing  is  afterwards  guilty  of  unreasonable  delay  in  having  the 
necessary  transcripts  and  proceedings  prepared  for  removing  the  cause,  it  will  be  competent 
to  tlie  other  party  to  move  the  court  for  leave  to  execute  the  decree,  notwithstanding  the 
appeal. 

Rule  53. — In  all  cases  of  process  in  rem,  the  property  after  arrest  is  deemed  in  the  cus- 
tody of  the  court,  and  the  marshal  cannot  surrender  it  on  bail,  or  otherwise,  without  the 
special  order  of  the  court. 


No.  III. 

STANDING  INTERROGATORIES  TO  WITNESSES  EXAMINED  IN  PREPARATIO. 

Let  each  witness  he  interrogated  to  every  of  the  following  questions,  aud  their  answers  to  each 
interrogatory  be  written  doiun  under  fiis  direction  and  supervision : 

1.  Where  were  you  born,  and  where  do  you  now  live,  and  how  long  have  you  lived  there. 
Of  what  prince  or  state  are  you  a  subject  or  citizen,  and  to  which  do  you  owe  allegiance. 
Are  you  a  citizen  of  the  United  States  of  America.  Are  you  a  married  man,  and,  if  mar- 
ried, where  do  your  family  and  wife  reside  ? 

2.  Were  you  present  at  the  capture  or  taking  of  the  vessel,  or  her  lading,  or  any  of  the 
goods  or  merchandises  concerning  which  you  are  now  examined? 

3.  When  and  where  was  such  seizure  and  capture  made,  and  into  what  place  or  port  were 
the  same  carried.  Had  the  vessel  so  captured  any  commission,  or  letters,  authorizing  her 
to  make  prizes.  What  and  from  whom.  For  what  reasons  or  on  what  pretence  was  the 
seizure  made? 

4.  Under  what  colors  did  the  captured  vessel  sail.  What  other  colors  had  she  on  board, 
and  for  what  reason  had  she  such  other  colors? 

5.  Was  any  resistance  made  at  the  time  of  the  capture,  and  by  whom.  Were  any  guns 
fired,  how  many,  and  by  whom.  By  what  sliip  or  ships  was  the  cajiture  made.  Were  any 
other  and  what  sliips  in  sight  at  the  time  of  the  capture.     Was  the  vessel  captured  a  mar- 


480  APPENDIX. 

chantman,  a  ship  of  war.  or  actino;  under  any  commission  as  a  privateer  or  letter  of  marque 
and  reprisal,  and  to  whom  did  such  vessel  belong.  Was  the  capturing  vessel  a  ship  of  war, 
a  letter  of  marque  end  reprisal,  or  privateer,  and  of  what  force  ? 

6.  Had  the  capturing  vessel  or  vessels  any  commission  to  act  in  the  seizure  or  capture  of 
the  vessel  inquired  about,  and  from  whom,  and  by  what  particular  vessel  was  the  capture 
made.  Was  the  vessel  seized  condemned,  and  if  so,  when  and  where,  and  for  what  reason, 
and  upon  what  account,  and  by  whom,  and  by  what  authority  or  tribunal  was  she  con- 
demned ? 

7.  What  was  the  name  of  the  vessel  taken,  and  of  her  master  or  commander.  Who  ap- 
pointed him  to  the  command  of  the  said  vessel,  and  where.  How  long  have  you  known  the 
vessel  and  him,  and  when  and  where  did  he  take  possession  of  her,  and  who  by  name  de- 
livered the  same  to  him.  Where  is  the  fixed  place  of  abode  of  the  master,  with  his  wife  and 
fcimily,  and  how  long  has  he  lived  there.  If  he  has  no  fixed  place  of  abode,  where  was  his 
last  piuce  of  residence,  and  how  long  did  he  Uve  there.  Where  was  he  born.  Of  wha* 
countrv  or  state  is  he  a  subject  or  citizen? 

8.  Of  what  tonnage  or  burden  is  the  vessel  which  has  been  taken,  and  about  which  you 
are  examined.  What  number  of  the  vessel's  company  belonged  to  her  at  the  time  she  was 
seized  and  taken,  and  how  many  were  then  actually  on  board  her.  What  countrymen  are 
they.  Did  they  all  come  on  board  at  the  same  port  and  time,  or  at  different  ports  and 
times,  and  when  and  where.     Who  shipped  or  hired  them,  and  when  or  where  ? 

9.  Did  you  belong  to  the  company  of  the  vessel  so  captured  at  the  time  of  her  seizure, 
and  in  what  capacity.  Had  you,  or  any  of  the  ofificers,  or  mariners,  or  company,  belonging 
to  the  said  vessel  at  the  time  of  her  capture,  any  part,  share,  or  interest  in  the  same,  or  in 
the  goods  or  merchandise  laden  on  board  her,  and  in  what  particular,  and  what  was  the  value 
thereof  at  the  time  the  said  vessel  was  captured,  and  the  said  goods  seized  ? 

10.  How  long  have  you  known  the  said  vessel.  When  and  where  did  you  first  see  her. 
How  many  guns  did  she  carry.  How  many  men  were  on  board  of  her  at  the  beginning  of 
the  engagement,  before  she  was  captured.  Of  what  country  build  was  she.  What  was  her 
name,  and  how  long  was  she  so  called.  Whether  do  you  know  of  any  other  name  she  was 
called  by,  and  what  were  such  names,  as  you  know  or  have  heard  ? 

11.  To  what  ports  and  places  was  the  vessel  concerning  which  you  are  now  examined 
bound,  on  the  voyage  wherein  she  was  taken  and  seized.  Where  did  the  voyage  begin,  and 
where  was  the  voyage  to  have  ended.  "What  sort  of  lading  did  she  carry  at  the  time  of  her 
first  setting  out  on  the  voyage,  and  what  particular  sort  of  lading  and  goods  had  she  on 
board  at  the  time  she  was  taken  and  seized.  In  what  year  and  in  what  month  was  the  same 
put  on  board.  Do  you  or  not  know  she  had  on  board  during  her  last  voyage,  and  when, 
goods  contraband  of  war,  or  otherwise  prohibited  by  law,  and  what  goods? 

12.  Had  the  vessel  of  which  you  are  examined  any  passport  or  sea-brief  on  board,  and 
from  whom.  To  what  ports  or  places  did  she  sail  during  her  last  voyage,  before  she  was 
taken.  Where  did  her  last  voyage  begin,  and  where  was  it  to  have  ended.  Set  forth  the 
kind  of  cargoes  the  vessel  has  carried  to  the  time  of  her  capture,  and  at  what  ports  such 
cargoes  have  been  delivered.  From  what  ports,  and  at  what  time,  particularly  from  the  last 
clearing  port,  did  the  said  vessel  saU,  previously  to  the  capture? 

K!.  What  lading  did  the  vessel  carry  at  the  time  of  hCr  first  setting  sail  in  her  last  voyage, 
and  what  particular  sort  of  lading  and  goods  had  she  on  board  at  the  time  she  was  taken. 
In  what  year  and  in  what  month  was  the  same  put  on  board  ?  Set  forth  the  dLfierent~species 
of  the  lading  and  the  quantities  of  each  sort. 

14.  Who  were  the  owners  of  the  vessel  and  goods  concerning  which  you  are  now  exam- 
ined, at  the  time  of  their  capture  and  seizure.  How  do  you  know  they  were  owners  thereof 
at  that  time.  Of  what  nation  or  country  are  they  by  birth,  and  where  do  they  live  with 
their  wives  and  families.  How  long  have  they  resided  there.  Where  did  they  reside  pre- 
viously, to  the  best  of  your  knowledge.  Of  what  country  or  state  are  they  subjects  or 
citizens  ? 

15.  Was  any  bill  of  sale  given,  and  by  whom,  to  the  owners  of  the  said  vessel,  and  in 
what  month  and  year.  Where,  and  in  presence  of  what  witnesses  was  it  made.  Was  any, 
and  what  engagement  entered  into  concerning  the  purchase,  further  than  what  appears  upon 
the  bill  of  sale.     Whore  did  you  last  see  it,  and  what  has  become  of  it? 

16.  In  what  port  or  place,  and  in  what  month  or  year,  was  the  lading  found  on  board  the 
Teasel,  at  the  time  of  her  capture  or  seizure,  first  put  on  board  her.     What  were  the  names 


APPENDIX. 


481 


of  the  respective  laders  or  owners,  or  consignees  thereof.  What  countrymen  are  they. 
Where  did  tliey  reside  before,  to  the  best  of  your  knowledge,  and  where  were  the  said  goods 
to  be  delivered,  and  for  wh>)se  real  account,  risk  or  benefit.  Have  any  of  the  said  laders  or 
consignees  any  and  what  interest  in  the  said  goods.  What  were  the  several  quaUties,  quan- 
tities, and  particulars  of  the  said  goods,  and  have  you  any  and  what  reason  to  know  or  fully 
believe  that  if  the  said  goods  shall  be  restored  and  unladen  at  the  destined  ports,  they  did, 
do,  and  will  belong  to  the  same  persons,  and  to  none  others  ? 

17.  How  m.uiy  bills  of  lading  were  signed  for  the  goods  seized  on  board  the  said  vessel. 
Were  any  of  those  bills  of  lading  false  or  colorable,  or  were  any  bills  of  lading  signed  which 
were  difl'erent  in  any  respect  from  those  which  were  on  board  the  vessel  at  the  time  she 
was  taken.  What  were  the  contents  of  such  other  bills  of  ladmg,  and  what  became  of 
them  ? 

18.  Have  you  in  your  pos.session.  or  were  there  on  board  of  the  said  vessel,  at  the  time 
of  her  capture,  any  bills  of  lading,  invoices,  letters,  or  other  writings,  to  prove  or  show  your 
own  interest,  or  the  interest  of  any  other  person,  and  of  whom,  in  the  vessel  or  in  the  goods 
concerning  which  you  are  now  examined  ?  If  in  your  power  produce  the  same,  and  set 
fortli  the  particular  times  when,  where,  and  in  what  manner,  and  upon  wliat  consideration, 
you  became  possessed  thereof.  If  you  cannot  produce  such  paper  evidences,  then  state  in 
whose  possession  you  last  saw  them,  or  where  you  know  or  believe  they  are  kept,  and  when, 
and  by  whom  they  were  brought  or  sent  within  tliis  district,  and  also  set  forth  the  contents 
or  purport  of  such  papei's. 

19.  State  the  degrees  of  latitude  and  longitude  in  which  the  said  vessel  and  her  cargo 
were  captured,  as  also  the  year,  month,  and  day,  and  time  thereof  in  which  such  seizure 
was  made,  and  in  or  near  what  port  or  place,  and  whether  it  was  a  port  of  any  state  or  ter- 
ritory of  the  United  States  of  America,  and  what  one.  Was  any  charter  party  for  the 
voyage  upon  wMch  the  said  vessel  was  captured,  signed,  and  executed,  and  by  whom  and 
when  ?  If  in  your  possession,  produce  the  same.  If  not,  set  forth  its  contents  and  state 
what  has  become  of  it. 

20.  What  papers,  bills  of  lading,  letters,  or  other  writings  relating  to  the  vessel  or  cargo, 
were  on  board  the  vessel  at  the  time  she  took  her  departure  from  her  last  clearing  port, 
before  she  was  taken  as  prize.  Were  any  of  them  burnt,  torn,  thrown  overboard,  destroyed, 
or  cancelled,  or  attempted  to  be  concealed,  and  when,  and  by  whom,  and  who  was  then 
present  ? 

21.  Did  you  or  the  owner,  master,  or  person  having  command  of  the  said  vessel  or  her 
navigation,  at  the  time  and  place  of  her  capture,  know  or  have  notice  that  such  place  or  port 
was  in  a  state  of  war  with  the  United  States,  and  that  the  naval  forces  of  the  United  States 
held  such  a  port  in  a  state  of  blockake.  How,  when,  or  where  had  j^ou  such  knowledge  or 
notice,  and  when  and  where  did  the  master  or  commandant  of  said  vessel  obtain  it  ? 

22.  Was  such  port  under  an  order  of  blockade  by  the  government  of  the  United  States. 
at  the  time  the  said  vessel  entered  or  made  an  attempt  to  enter  the  same.  Had  warning  or 
notice  of  such  blockade  been  given  to,  or  received  by  the  owner,  master,  or  commandant  of 
said  vessel,  before  or  at  the  time  she  entered,  or  attempted  to  enter  said  port,  and  wlien,  and 
in  what  manner.  Had  notice  in  writing  been  endorsed  on  the  register  or  other  ship'.«  paijors 
of  the  said  vessel,  and  when,  where,*and  by  whom,  of  an  existing  blockade  of  such  i)ort. 
before  she  entered,  or  attempted  to  enter  the  same,  or  before  the  time  of  her  sailing,  or  at- 
tempting to  sail  therefrom? 

23.  A7as  the  register  of  the  vessel,  about  which  you  are  examined,  shown  to,  or  exam- 
ined by  any  officer  of  the  United  States  navy,  or  by  any  revenue  officer  of  the  United 
States,  before  she  was  captured  and  taken,  and  before  she  entered  the  port  at.  or  near  which. 
she  was  taken  and  seized,  and  was  the  register,  or  other  ship's  papers,  endorsed  by  said 
United  States  officer  ? '  Declare  fully  all  you  know,  or  have  reason  to  believe,  respecting 
this  interrogatory,  stating  the  persons,  times,  and  places  connected  therewith. 

24:.  Do  you  know,  or  do  you  believe  from  information,  an'd  if  the  latter,  from  what  infor- 
mation, and  when  and  how  was  it  obtained,  that  the  vessel  inquired  about,  at  any  time  or 
times,  after  the  Ijlockade  of  the  said  port,  and  with  notice  thereof,  and  when,  attempted 
povertly  and  secretly  to  enter  the  said  blockaded  port,  or  to  sail  tlierefrom,  without  success  ? 
Disclose  full}-  all  your  knowledge,  information,  and  beUef  thereon,  with  the  particulars  upon 
whicli  the  same  is  founded. 

25.  Has  the  vessel,  concerning  which  you  are  now  examined,  been  at  any  time,  and  when, 

31 


4S2  APPE]S^DIX. 

seized  as  prize  mrl  condemned  as  such?     If  yea,  set  forth  into  wliat  port  she  was  carried, 
and  b}-  whom,  and  by  what  authority,  or  on  what  account  she  was  condemned. 

2G.  Have  TO- 1  sustained  any  loss  by  the  seizing  and  taking  the  A^essel  concerning  which  , 
you  are  now'examined.     If  yea,  in  what  manner  do  you  compute  such  your  loss.     Have 
you  already  received  any  indemnity,  satisfaction,  or  promise  of  satisfaction,  for  any  part  of 
the  damage  wliich  you  have  sustained,  or  may  sustain,  by  this  capture  and  detention,  and 
when  and  from  whom  ? 

27.  Is  the  said  vessel  or  goods,  or  any,  and  what  parts,  insured.  If  yea,  for  what  voyage 
is  such  insurance  made,  and  at  what  premium,  and  when  and  by  what  persons,  and  in  what 
country  was  such  insurance  made  ? 

2S.  In  case  you  had  arrived  at  your  destined  port,  would  your  cargo,  or  any  part  thereof, 
on  being  unladen,  have  immediately  become  the  property  of  the  consignees,  or  any  person, 
and  whom.     Or  was  the  lader  to  take  the  chance  of  the  market  for  the  sale  of  his  goods  ? 

29.  Lcc  each  witness  be  interrogated  of  the  growth,  produce,  and  manufacture,  on  board 
tho  vessel ;  of  wliat  country  and  place  was  the  lading  concerning  which  they  are  now  inter- 
rogated, or  any  part  thereof 

30.  Whether  all  the  said  cargo,  or  any  and  what  part  thereof,  was  taken  from  the  shore, 
or  quay,  or  removed,  or  transshipped  from  one  vessel  to  another,  from  what  and  to  what 
shore,  quaj^,  and  vessel,  and  when  and  where  was  the  same  so  done. 

31.  Are  there  in  any  country  besides  the  United  States,  and  where,  or  on  board  any  and 
what  vessel,  or  vessels,  other  than  the  vessel  concerning  which  you  are  now  examined,  any 
bills  of  lading,  invoices,  letters,  instruments,  papers,  or  documents,  relative  to  the  said  ves- 
sel or  cargo,  and  of  what  nature  are  they,  and  what  are  their  contents  ? 

32.  Were  any  papers  delivered  out  of  the  said  vessel,  and  carried  away  in  any  manner 
whatsoever,  and  wlien.  and  by  whom,  and  to  whom,  and  in  whose  custody,  possession,  or 
power,  do  you  lielieve  the  same  now  are  ? 

33.  "Was  bulk  broken  during  the  voyage  on  which  you  were  taken,  or  since  the  capture 
of  the  said  ves-el.  and  when,  and  where,  by  whom,  and  by  whose  orders,  and  for  what  pur- 
pose, and  in  what  manner? 

34.  "Were  any  passengers  on  board  the  aforesaid  vessel ;  were  any  of  them  secreted  at 
the  time  of  the  capture.  Who  were  the  passengers  by  name.  Of  what  nation,  rank,  pro- 
fession, or  occupation.  Had  they  any  commission — for  what  purpose,  and  from  wliom. 
From  what  place  were  they  taken  on  board,  and  when.  To  what  place  were  they  finally 
destined,  and  upon  what  business.  Had  any,  and  which  of  the  passengers,  any  and  what 
property,  or  concern,  or  authority,  directly  or  indirectly,  regarding  tho  vessel  and  cargo. 
Were  there  any  officers,  soldiers,  or  mariners  secreted  on  board,  and  for  what  reason  were 
they  secreted.  Were  any  citizens  of  the  United  States  on  board,  or  secreted,  or  confined, 
at  the  time  of  the  capture.  How  long,  and  why.  Whether  any  persons  on  board  the  said 
vessel,  at  the  time  of  her  capture,  were  citizens  or  residents  of  any  state  or  territory  of  the 
United  States,  then  in  a  stati-  of  war  or  rebellion  against  the  United  States,  its  government 
and  laws.  If  so,  who  by  name,  and  of  what  state  or  territory.  What  vras  their  employ- 
ment on  board  the  vessel,  and  what  their  destination  ? 

35.  Were  and  are  all  the  passports,  sea-briefs,  charter  parties,  bills  of  sale,  invoices,  and 
papers,  which  were  found  on  board,  entirely  true  and  fair,  or  are  any  of  them  false  or  color- 
able. Do  you  know  of  any  matter  or  circumstance  to  affect  their  credit.  By  whom  were 
the  passports  or  sea-briefs  obtained,  and  from  whom.  Were  they  obtained  for  t^is  vessel 
only,  and  upon  the  oath  or  affirmation  of  the  persons  therein  described,  or  were  they  de- 
Uvered  to  or  on  behalf  of  the  person  or  persons  who  appear  to  have  been  sworn  or  to  have 
affirmed  thereto,  witho\it  their  having  ever,  in  fact,  made  any  such  oath  or  affirmation. 
How  long  a  time  were  they  to  last.  Was  any  duty  or  fee  payable  and  paid  for  the  same, 
and  is  there  any  duty  or  fee  to  be,  paid  on  the  i-enewal  thereof  Have  such  passport-s  been 
renewed,  and  liow  often,  and  has  the  duty  or  fee  been  paid  for  such  renewal.  Was  the  ves- 
sel in  a  port  in  the  country  where  the  passports  and  sea-briefs  were  granted,  and  if  not, 
where  was  the  vos.^el  at  the  time.  Had  any  person  on  board  anj-  passport,  license,  or  let- 
ters of  safe  conduct.  If  yea,  from  whom,  and  for  what  business.  If  it  should  appear  that 
there  are  in  the  United  States,  or  in  any  other  place  or  country  besides  the  United  Stales 
any  bills  of  lading,  invoices,  instruments,  or  papers,  relative  to  the  vessel  and  goods  con- 
cerning which  vdu  are  now  examined,  state  how  tliey  were  brouglit  into  such  place  or 
country.    In  whoso  possession  are  they,  and  do  they  differ  from  any  of  the  papers  on  board 


APPENDIX.  483 

or  in  the  United  States,  or  elsewhere,  and  in  what  particular  do  lliey  differ.  Ilave  you 
written  or  signed  any  letters  or  papers  concerning  the  vessel  and  her  cargo.  What  wa3 
t.MV  purport.     To  whom  were  they  written  and  sent,  and  what  has  become  of  them? 

36.  Toward  what  port  or  place  was  the  vessel  steering  her  course,  at  tlie  time  of  her  being 
first  pursued  and  taken.  Was  her  course  altered  upon  the  appearance  of  the  vessel  by 
which  she  was  taken.  Was  her  course  at  all  times,  when  the  weather  would  permit, 
directed  to  tlie  place  or  port  for  which  she  appears  to  have  been  destined  by  the  ship  papers. 
Was  the  vessel,  before  or  at  the  time  of  her  capture,  sailing  beyond  or  wide  of  the  said 
place  or  port  to  which  she  was  so  destined  by  the  said  ship  papers.  At  what  distance  was 
she  therefrom.  Was  her  course  altered  at  any,  and  what  time,  and  to  what  other  port  or 
place,  and  for  what  reason  ? 

37.  By  whom  and  to  whom  hath  the  said  vessel  been  sold  or  transferred,  and  how  often. 
At  what  time  and  at  what  place,  and  for  what  sum  or  consideration,  has  the  same  been  paid 
or  satisfied.  Was  the  sum  paid,  or  to  be  paid,  a  fair  and  true  equivalent,  or  what  security 
or  securities  have  been  given  for  the  payment  of  the  same ;  and  by  wliom,  and  where  do 
they  now  live.  Do  you  know,  or  believe  in  your  conscience,  such  sale  or  transfer  has  been 
truly  made,  and  not  for  the  purpose  of  covering  or  concealing  the  real  property.  Do  you 
verily  believe  that  if  the  vessel  should  be  restored,  she  will  belong  to  the  persons  now  as- 
serted to  be  tlie  owners,  and  to  none  others  ? 

38.  Wlrat  guns  were  mounted  on  board  the  vessel,  and  what  arms  and  ammunition  were 
belonging  to  her.  Why  was  she  so  armed.  Were  there  on  board  any  other  guns,  weapons, 
warlike  arms,  or  armament  of  any  name  or  description,  and  if  any,  what.  Were  there  any 
parts  of  warlike  arms,  not  put  together  or  finished,  or  any  ammunition,  fixed  or  unfixed,  or 
any  balls,  shells,  rockets,  hand  grenades,  flints,  percussion  caps,  or  any  other  thing  known 
to  be  intended  for  military  equipment.  Were  there  any  belts,  ball  moulds,  saltpetre,  nitre, 
camp  equipage,  military  tools,  uniforms,  soldiers'  clothing,  or  accoutreuients,  or  any  parts  of 
them,  or  any  sort  of  warlike  or  naval  stores.  Were  any  of  such  warlike  or  naval  stores,  or 
things,  thrown  overboard  to  prevent  suspicion  at  the  time  of  the  capture ;  and  were  any 
such  warlike  stores,  before  described,  concealed  on  board  under  the  name  of  mei'chandise, 
or  any  other  colorable  appellation,  in  the  ship  papers.  If  so,  what  are  the  marks  on  the 
casks,  bales,  and  packages  in  which  they  were  concealed.  Are  any  of  the  before-named 
articles,  and  which,  for  tlie  sole  use  of  any  fortress  or  garrison  in  tlie  port  or  place  to  which 
such  vessel  was  destined.  Do  you  know,  or  have  you  heard  of  any  ordinance,  placard,  or 
law,  existing  in  such  country  or  state,  forbidding  the  exportation  of  the  same  by  private 
persons,  without  license.  Were  such  warlike  or  naval  stores  put  on  board  by  any  iniblic 
authority.     When  and  where  were  they  put  on  board? 

39.  What  is  the  wliole  which  you  know  or  believe,  according  to  the  best  of  your  knowl- 
edge and  belief,  regarding  the  real  and  true  property  and  destination  of  the  vessel  and  cargo 
concerning  which  you  are  now  examined,  at  the  time  of  the  capture  ? 

40.  Did  the  said  vessel,  on  the  voyage  in  which  she  was  captured  (or  on),  or  during  any 
or  what  former  voyage  or  voyages,  sail  under  the  convoy  of  any  slap  or  ships  of  war,  or 
other  armed  vessel  or  vessels.  For  what  reason  or  purpose  did  she  sail  under  such  convoy. 
Of  what  force  was  or  were. such  convoying  ship  or  ships,  and  to  what  state  or  country  did 
the  same  belong.  What  instructions  or  directions  had  you  or  did  you  receive  on  each  and 
every  of  such  voyages,  when  under  convoy,  respecting  your  sailing  or  keeping  in  com- 
pany with  such  armed  or  convoying  ship  or  ships;  and  from  whom  did  you  receive  such  in- 
structions or  directions.  Had  you  any,  and  what  directions  or  instruction.s,  and  from  whom, 
for  resisting,  or  endeavoring  to  avoid  or  escape  from  capture,  or  for  destroying,  concealing, 
or  refusing  to  deliver  up  your  vessel's  documents  and  papers;  or  any,  and  what  other  papers, 
that  miglit  be  or  were  put  on  board  your  said  ship.  If  so,  state  the  tenor  of  such  instruc- 
tions and  all  particulars  relating  tliereto.  Are  you  in  possession  of  such  instructions,  or 
copies  tliereof  ?     If  so,  leave  tlicm  with  the  commissioner,  to  be  annexed  to  j^our  deposition. 

41.  Did  tlie  said  vessel,  during  the  voyage  in  which  she  was  captured,  or  on  making  any 
and  what  former  voyage  or  voyages,  sail  to,  or  attempt  to  enter  any  port  under  blockade  by 
the  arms  or  forces  of  any,  and  what  belligerent  power.  If  so,  when  did  you  first  learn  or  hear 
of  such  port  being  so  blockaded,  and  were  you  at  any,  and  what  time,  and  by  whom  warned 
not  to  proceed  to,  or  attempt  to  enter  into,  or  to  escape  from,  such  blockaded  port.  What  con- 
versation or  other  communication  passed  thereon.  And  what  course  did  you  pursue  upon 
and  after  being  so  warned  off? 


484  APPENDIX. 

42.  "WTaethor  or  no  the  vessel,  concerning  which  you  are  examined,  did  sail  on  lier  last 
voyage,  prior  to  her  seizure,  carrying  a  commission  or  license  as  a  privateer,  or  letter  of 
marque  and  reprissal,  or  other  authority  from  any  person  or  persons,  to  cruise  against  the 
persons  or  property  of  the  citizens  of  the  United  States,  and  to  make  prizes  thereof  By 
whom  was  such  authority,  license,  or  direction  given,  and  when.  Was  it  in  writing.  If  so, 
did  it  remain  with  the  vessel  up  to  the  time  of  her  capture,  or  was  it  destroyed  or  concealed 
previous  thereto.  When,  aud  by  whom.  What  are  the  contents  or  purport  thereof?  State 
all  the  facts  in  your  knowledge  within  this  inquiry,  and  the  sources  of  such  knowledge. 
Also  state  fully  all  the  acts  known  to  you  to  have  been  done  by  the  vessel,  her  master  or 
crew,  under  such  commis.sion  or  license,  up  to  the  period  of  he-  capture. 

43.  Whether  or  no  the  said  vessel  inquired  about,  at  any  time,  and  when  and  where, 
sailed  or  acted  in  company  or  concert  with  any  other  armed  vessel  or  vessels,  and  what,  in 
cruising  against,  pursuing,  or  seizing  as  prize,  any  persons,  ves.?els,  or  property  of  citizens 
of  the  United  States  ?  Declare  fully  and  particularly  your  knowledge,  information,  and  be- 
lief therein.  « 


No.  IV. 

PROYISIONS  OF  THE  ACT  OF  CONGRESS  OF  1800,  Chap.  33,  §§  5  and  6, 

PROVIDIXa  FOR  THE  DISTRIBUTION  OF  PROCEEDS  OF  PRIZES  MADE  BY  PUBLIC  ARMED  SHIPS. 

Sec.  5.  And  be  il  further  enacted,  That  the  proceeds  of  all  ships  and  vessels,  and  the  goods 
taken  on  board  of  them,  which  shall  be  adjudged  good  prize,  shall,  when  of  equal  or  supe- 
rior force  to  the  vessel  or  vessels  making  the  capture,  be  the  sole  property  of  the  captors ; 
and  when  of  inferior  force,  shall  be  divided  equally  between  the  United  States  air'  'ho  offi- 
cers and  men  making  the  capture. 

Sec.  6.  And  he  it  further  enacted,  That  the  prize  money,  belonging  to  the  offieo;  '^n, 

shall  be  distributed  in  the  following  manner : 

1.  To  the  commanding  ofiScers  of  fleets,  squadrons,  or  single  ships,  three-twentietliLA,  of 
which  the  commanding  ofQcer  of  the  fleet  or  squadron  shall  have  one-twentieth,  if  the  prize 
be  taken  by  a  ship  or  vessel  acting  under  his  command,  and  the  commander  of  single  ships 
two-twentieths ;  but  where  the  prize  is  taken  by  a  ship  acting  independently  of  such  supe- 
rior officer,  the  three-twentieths  shall  belong  to  her  commander. 

2.  To  sea  lieutenants,  captains  of  marines,  and  sailing  masters,  two-twentieths ;  but  where 
there  is  a  captain,  without  a  lieutenant  of  marines,  these  officers  shall  be  entitled  to  two- 
twentieths  and  one-tiiird  of  a  twentieth,  which  third,  in  such  case,  shall  be  deducted  from 
the  share  of  the  officers  mentioned  in  article  No.  3,  of  this  section. 

3.  To  chaplains,  lieutenants  of  marines,  surgeons,  pursers,  boatswains,  gunners,  carpen- 
ters, and  master's  mates,  two-twentieths. 

4.  To  midshipmen,  surgeon's  mates,  captain's  clerks,  school-masters,  boatswain's  mates, 
gimner's  mates,  carpenter's  mates,  ship's  stewards,  sailmakers,  masters-at-arms,  armorers, 
cockswains,  and  coopers,  three-twentieths  and  a  half 

5.  To  gunner's  yeomen,  boatswain's  yeomen,  quartermasters,  quarter  gunners,  sailmaker's 
mates,  sergeants  and  corporals  of  marines,  drummers,  fifers,  and  extra  petty  officers,  two- 
twentieths  and  a  half 

6.  To  seamen,  ordinary  seamen,  marines,  and  all  other  persons  doing  duty  on  board, 
seven-twentieths. 

7.  Whenever  one  or  more  public  ships  or  vessels  are  in  sight  at  the  time  any  one  or  more 
ships  are  taking  a  prize  or  prizes,  they  shall  all  share  equally  in  the  prize  or  prizes,  accord- 
ing to  the  number  of  men  and  guns  on  board  each  ship  in  sight. 

No  commander  of  a  fleet  or  squadron  shall  be  entitled  to  receive  any  share  of  prizes  taken 
by  vessels  not  under  his  immediate  command ;  nor  of  such  prizes  as  may  have  been  taken 
by  ships  or  vessel.'*  intended  to  be  placed  under  his  command,  before  they  have  acted  under 
his  immediate  orders ;  nor  shall  a  commander  of  a  fleet  or  squadron,  leaving  the  station 
where  he  had  the  eoMunand,  have  any  share  in  the  pnzes  taken  by  sliips  left  on  such  .sta- 
tion, after  he  has  gone  out  of  the  limits  of  his  said  command. 


APPENDIX.  485 

No.  V. 

ACT  OF  CONGRESS  OF  JUNE  26th,  1812,  Chap.  107,  §  4. 

PROVIDING   FOB  THE   DISTRIBUTION   OF   PROCEEDS   OP   PRIZES  TAKEN   BY   PRIVATEERS. 

And  be  it  farther  enacted,  That  all  captures  and  prizes  of  vessels,  and  property,  shall  be 
forfeited  and  shall  accrue  to  the  owners,  officers  and  crews  of  the  vessels  by  whom  such 
captures  and  prizes  sliall  be  made,  and  on  due  condemnation  had,  shall  be  distributed  ac- 
cording to  any  written  agreement  which  shall  be  made  between  them — and  if  there  be  no 
such  agreement,  then,  one  moiety  to  the  owners,  and  the  other  moiety  to  the  officers  and 
crew,  to  Ido  distributed  between  the  officers  and  crew,  as  nearly  as  may  Ije  according  to  the 
rules  prescribed  for  the  distribution  of  prize  money  by  the  act,  entitled  "An  act  for  the 
better  government  of  the  navy  of  the  United  States,"  passed  the  23d  day  of  April,  one 
thousand  eight  hundred. 


No.  VI. 

THE   PROCLAMATIONS. 

A  PROCLAMATION,  BY  THE  PRESIDENT  OF  THE  UNITED  STATES. 

Whereas,  The  laws  of  the  United  States  have  been  for  some  time  past  and  now  are  op- 
posed, and  the  execution  thereof  oljstructed,  in  the  states  of  South  Carolina,  (jteorgia,  Ala- 
bama, Florida,  Mississippi,  Louisiana,  and  Texas,  by  combinations  too  powerful  to  be  sup- 
pressed by  the  ordinary  course  of  judicial  proceedings,  or  by  the  powers  vested  in  the  mar- 
shals by  law : 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United  States,  in  virtue  of  the 
power  in  me  vested  by  the  constitution  and  the  laws,  have  thought  lit  to  call  forth,  and 
hereby  do  call  forth,  the  militia  of  the  several  states  of  the  Union,  to  the  aggregate  number 
of  75,000,  in  order  to  suppress  said  combinations,  and  to  cause  the  laws  to  be  duly  executed. 
The  details  for  this  object  will  be  immediately  communicated  to  the  state  authorities  through 
the  War  Department. 

I  appeal  to  all  loyal  citizens  to  favor,  facilitate,  and  aid  this  efibrt  to  maintain  the  honor, 
the  integrity,  and  the  existence  of  our  National  Union  and  the  perpetuity  of  popular  govern- 
ment, and  to  redress  wrongs  already  long  enough  endured. 

I  deem  it  proper  to  say  that  the  hrst  service  assigned  to  the  force  hereby  called  forth,  will 
probably  be  to  repossess  the  forts,  places  and  property  which  have  been  seized  from  the 
Union,  and  in  every  event,  the  utmost  care  will  be  observed,  consistently  with  the  objects 
aforesaid,  to  avoid  any  devastation,  any  destruction  of,  or  interference  with  property,  or  any 
disturbance  of  peaceful  citizens  in  any  part  of  the  country;  and  I  hereby  command  the  per- 
sons composing  the  combinations  aforesaid,  to  disperse  and  retire  peaceably  to  tlieir  respec- 
tive abodes  within  twenty  days  from  this  date. 

Deeming  that  the  present  condition  of  public  affairs  presents  an  extraordinary  occasion,  I 
do  hereby,  in  virtue  of  the  power  in  me  vested  by  the  constitution,  convene  both  houses  of 
Congress.  The  senators  and  representatives  are  therefore  summoned  to  asseml)le  at  their 
respective  chambers  at  twelve  o'clock,  noon,  on  Thursday,  the  fourth  day  of  July  next,  then 
and  there  to  consider  and  determine  such  measures  as,  in  their  wisdom,  the  public  safety 
and  interest  may  seem  to  demand. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of  the  United  States 
to  be  affixed. 

Done  at  the  city  of  Washington,  this  fifteenth  day  of  April,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty-one,  and  of  the  independence  of  the  United  States  the 
eighty-fifth. 

By  the  President:  ABRAHAM  LINCOLN. 

William  H.  Seward,  Secretary  of  State. 


480  .  appejs^dix. 

PBOCLAMATION    BY   JEFFERSON   DAVIS. 

"Whereas,  Abraham  Lincoln,  President  of  the  United  States,  has  by  proclamation  an- 
'  nounced  the  intention  of  invading  the  confederacy  with  an  armed  force  for  the  purpose  of 
capturing  its  fortresses,  and  thereby  subverting  its  independence  and  subjecting  the  free 
people  thereof  to  the  dominion  of  a  foreign  power;  and  whereas  it  has  thus  become  the 
duty  of  this  government  to  repel  the  threatened  invasion  and  defend  the  rights  and  liberties 
of  the  people  by  all  the  meaus  which  the  laws  of  nations  and  usages  of  civihzed  warfare 
place  at  its  disposal : 

Now,  therefore,  ],  Jefferson  Davis,  President  of  the  Confederate  States  of  America,  do 
issue  this  my  proclamation,  inviting  all  those  who  may  desire  by  service  in  private  armed 
vessels  on  the  high  seas  to  aid  this  government  in  resisting  so  wanton  and  wcked  an  ag- 
gression, to  make  application  for  commissions  or  letters  of  marque  and  reprisal,  to  be  issued 
under  the  seal  of  these  Confederate  States ;  and  I  do  further  notify  all  persons  applying  for 
letters  of  marque,  to  make  a  statement  in  writing,  giving  the  name^aud  suitable  description 
of  the  character,  tonnage,  and  force  of  the  vessel,  name  of  the  place  of  residence  of  each 
owner  concerned  therein,  and  the  intended  number  of  crew,  and  to  sign  such  statement,  and 
deliver  the  same  to  the  secretary  of  state  or  collector  of  the  port  of  entry  of  these  Confede- 
rate States,  to  be  by  him  transmitted  to  the  secretary  of  state ;  and  I  do  further  notify  all 
applicants  aforesaid,  before  any  commission  or  letter  of  marque  is  issued  to  any  vessel  or  the 
owner  or  the  owners  thereof  and  the  commander  for  the  time  being,  they  will  be  required  to 
give  bond  to  the  Confederate  States,  with  at  least  two  responsible  sureties  not  interested  in 
such  vessel,  in  the  penal  sum  of  five  thousand  dollars,  or  if  such  vessel  be  provided  with 
more  than  one  hundred  and  fifty  men,  then  in  the  penal  sum  of  ten  thousand  dollars,  with 
the  condition  that  the  owners,  officers,  and  crew  who  shall  be  employed  on  board  such  com- 
missioned vessel,  shall  observe  the  laws  of  these  Confederate  States  and  the  instructions 
given  them  for  the  regulation  of  their  conduct,  that  shall  satisfy  all  damages  done  contrary 
to  the  tenor  thereof  by  such  vessel  during  her  commission,  and  deliver  up  the  same  when 
revoked  by  the  president  of  the  Confederate  States;  and  I  do  further  specially  enjoin  on  all 
persons  holding  office,  civil  and  military,  under  tJie  authority  of  the  Confederate  States,  that 
they  be  vigilant  and  zealous  in  the  discharge  of  the  duties  incident  thereto ;  and  I  do,  more- 
over, exhort  the  good  people  of  these  Confederate  States,  as  they  love  their  country,  as  they 
prize  the  blessings  of  free  government,  as  they  feel  the  wrongs  of  the  past  and  those  now 
threatened  in  an  aggravated  form  by  those  whose  enmity  is  more  implacable  because  un- 
provoked, they  exert  themselves  in  preserving  order,  in  promoting  concord,  in  maintaining 
the  authority  and  efficacy  of  the  laws,  and  in  supporting  and  invigorating  aU  the  measures 
which  may  be  adopted  for  a  common  defence,  and  by  which,  under  the  blessing  of  Divine 
Providence,  we  may  hope  for  a  speedy,  just,  and  honorable  peace. 

In  witness  whereof,  I  have  set  my  hand  and  have  caused  the  seal  of  the  Confederate 
States  of  America  to  be  attached  this  seventeenth  day  of  April,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  sixty-one. 

JEFFEESON  DAVIS. 
Robert  Toombs,  Secretary  of  State. 

A   PROCLAMATION,    BY   TUB   PRESIDENT   OF   THE   UNITED   STATES   OF   AMERICA. 

Whereas,  an  insurrection  against  the  government  of  the  United  States  has  broken  out 
in  the  states  of  South  Carolina,  Georgia,  Alabama,  Florida,  Mississippi,  Louisiana,  and  Texas, 
and  the  laws  of  the  United  States  for  the  collection  of  the  revenue  cannot  be  efficiently  ex- 
ecuted therein  conformably  to  that  provision  of  the  constitution  which  requires  duties  to  be 
uniform  throughout  the  United  States : 

And  whereas,  a  combination  of  persons,  engaged  in  such  insurrection,  have  threatened  to 
grant  pretended  letters  of  marque  to  authorize  the  bearers  thereof  to  commit  assaults  on  the 
lives,  vessels,  aiiil  property  of  good  citizens  of  the  country  lawfully  engaged  in  commerce  on 
the  high  seas,  and  in  waters  of  the  United  States: 

And  whereas,  an  executive  proclamation  has  been  already  issued,  requiring  the  persons 
engaged  in  these  disorderly  proceedings  to  desist  therefrom,  caUiug  out  a  mihtia  force  for  the 
purpose  of  repressing  the  same,  and  convening  Congress  in  extraordinary  session  to  delibe- 
rate and  determine  thereon : 


APPENDIX.  487 

Now,  therefore,  I,  Abraham  Lincoln,  President  of  the  United  States,  with  a  view  to  the 
same  purposes  before  mentioned,  and  to  the  protection  of  the  public  peace,  and  the  Uves  and 
property  of  quiet  and  orderly  citizens  pursuing  their  lawful  occupations,  until  Congress  shall 
have  assembled  and  deliljerated  on  the  said  unlawful  proceedings,  or  until  the  same  shall 
have  ceased,  have  further  deemed  it  advisable  to  set  on  foot  a  blockade  of  the  ports  within 
the  states  aforesaid,  in  pursuance  of  the  laws  of  the  United  States  and  of  the  laws  of  nations 
in  such  cases  provided.  For  this  purpose  a  competent  force  will  be  posted  so  as  to  prevent 
entrance  and  exit  of  vessels  from  the  ports  aforesaid.  If,  therefore,  with  a  view  to  violate 
such  blockade,  a  vessel  shall  approacli,  or  shall  attempt  to  leave  any  of  the  said  ports,  she 
will  be  duly  warned  by  the  commander  of  one  of  the  blockading  vessels,  who  will  indorse 
on  her  register  the  fact  and  date  of  such  warning,  and  if  the  same  vessel  shall  again  attempt 
to -enter  or  leave  the  blockaded  port,  she  will  be  captured  and  sent  to  the  nearest  convenient 
port,  for  such  proceedings  against  her  and  her  cargo,  as  prize,  as  may  be  deemed  advisable. 

.And  I  hereby  proclaim  and  declare  that  if  any  person,  under  the  pretended  authority  of 
said  states,  or  under  aay  other  pretence,  shall  molest  a  vessel  of  the  United  States,  or  the 
persons  or  cargo  on  board  of  her,  such  person  will  be  held  amenable  to  the  laws  of  the  Unit- 
ed States  for  the  prevention  and  punishment  of  piracy. 

By  the  President:  ABRAHAM  LUSTCOLN. 

"William  H.  Sewabd,  Secretary  of  State. 
■Washington,  Apinl  19,  1S61. 

A  PROCLAMATION,    BY   THE   PRESIDENT   OF   THE   UNITED   STATES   OF   AMERICA. 

Whereas,  for  the  reasons  assigned  in  my  proclamation  of  the  19th  instant,  a  blockade 
of  the  ports  of  the  states  of  South  Carolina,  Georgia,  Florida,  Alabama,  Louisiana,  Mississippi 
and  Texas  was  ordered  to  be  established : 

And  whereas,  since  that  date,  public  property  of  the  L^nited  States  has  been  seized,  the 
collection  of  the  revenue  obstructed,  and  duly  commissioned  officers  of  the  United  States, 
while  engaged  in  executing  the  orders  of  their  superiors,  have  been  arrested  and  held  in 
custody  as  prisoners,  or  have  been  impeded  in  the  discharge  of  their  official  duties  without 
due  legal  process,  by  persons  claiming  to  act  under  authorities  of  the  states  of  Virginia  and 
North  Carolina,  an  efBcient  blockade  of  the  ports  of  those  states  will  also  l)e  established. 

By  the  President :  ABRAHAM  LINCOLN. 

William  H.  Seward,  Secretary  of  State. 

WASnuvGTON,  April  27,  1861. 

THE   BLOCKADE. — TO   ALL   WHOM   IT   MAY   CONCERN. 

United  States  Flag-Ship  C'imiiei-.land, 
Off  Fortress  Monroe,  Va.,  April  30,  1861. 

I  hereby  call  attention  to  the  proclamation  of  his  Excellency,  Abraham  Lincoln,  President 
of  the  United  States,  under  date  of  April  27,  1861,  for  an  efficient  blockade  of  the  ports  of 
Virginia  and  North  Carohna,  and  warn  all  persons  interested  that  I  have  a  sufficient  naval 
force  here  for  the  purpose  of  carrying  out  that  proclamation. 

All  vessels  passing  the  capes  of  Virginia  coming  from  a  distance  and  ignorant  of  the  pro- 
clamation, will  be  warned  off,  and  those  passing  Fortress  Monroe  will  be  required  to  anchor 
under  the  guns  of  that  fort  and  subject  themselves  to  an  examination. 

Gr.  J.  Pendergrast,  Flag  Officer,  commaading  Home  Squadron. 

A  PROCLAMATION,    BY   THE   PRESIDENT   OF   THE   UNITED   STATES. 

Washington,  Friday,  May  3, 1861. 

Whereas,  existing  exigencies  demand  immediate  and  adequate  measures  for  the  protec- 
tion of  the  National  Constitution  and  the  preservation  of  the  National  Union,  by  the  suppres- 
sion of  the  insurrectionary  combinations  now  existing  in  several  states  foropjjosing  the  laws 
of  the  L^nion  and  obstructing  the  execution  thereof,  to  whicli  end  a  military  force  in  addition 
to  that  called  forth  by  my  proclamation  of  the  tifteenth  day  of  April,  in  the  present  year, 
•appears  to  be  indispensably  necessary,  now,  therefure,  I,  Abraham  LiX'ni.N,  President  of 
the  United  States,  and  commander-in-chief  of  the  army  and  navy  thereof,  and  of  the  mill- 


4S8  APPENDIX. 

tia  of  the  several  states,  wlien  called  into  actual  service,  do  hereby  call  into  the  service  of 
the  United  States  forty-two  thousand  and  thirty-four  volunteers,  to  serve  for  a  period  of 
three  years,  unless  sooner  discharged,  and  to  be  mustered  into  service  as  infantry  and  cav- 
alry. "The  proportions  of  each  arm  and  the  details  of  enrolment  and  organization  will  be 
made  known  through  the  Department  of  War;  and  I  also  direct  that  the  regular  army  of 
tiio  United  States  bo  increased  by  the  addition  of  eight  regiments  of  infantry,  one  regiment 
of  cavalry,  and  one  regiment  of  artillery,  making  altogether  a  maximum  aggregate  increase 
of  22.714  officers  and  enlisted  men,  the  details  of  which  increase  will  also  be  made  known 
throuu-li  the  Department  of  War;  and  I  further  direct  the  enlistment,  for  not  less  than  one 
nor  iiiore  than  three  years,  of  18,000  seamen,  in  addition  to  the  present  force,  for  the  naval 
service  of  the  United  States.  The  details  of  the  eidistment  and  organization  wiU  be  made 
known  through  the  Department  of  the  Navy.  The  call  for  volunteers  hereby  made,  and 
the  direction  for  the  increase  of  the  regular  army,  and  for  the  enlistment  of  seamen  hereby 
given,  together  with  the  plan  of  organization  adopted  for  the  volunteers  and  for  the  regular 
forces  lieroby  authorized,  wiU  be  submitted  to  Congress  as  soon  as  assembled. 

In  the  mean  time  I  earnestly  invoke  the  co-operation  of  all  good  citizens  in  the  measures 
herebv  adopted  for  the  etl'ectual  suppression  of  unlawful  violence,  for  the  impartial  enforce- 
ment "of  constitutional  laws,  and  for  the  speediest  possible  restoration  of  peace  and  order, 
and  with  those  of  happiness  and  prosperity  throughout  our  country. 

By  the  President:  ABRAHAM  LINCOLN. 

WiLLi.v>[  H.  Sewaed,  Secretary  of  State. 

PROCLAMATION    BY   QUEEN   VICTORIA. 

Victoria  R. — Whereas  we  are  happily  at  peace  with  all  sovereigns,  powers  and  states, 
and  whereas  hostilities  have  unhappily  commenced  between  the  government  of  the  United 
States  of  America  and  certain  states  styling  themselves  the  Confederate  States  of  America, 
and  whereas,  ive  being  at  peace' with  the  government  of  the  United  States,  have  declared  our 
royal  determination  to  maintain  a  strict  and  impartial  neutrality  in  the  contest  between  the  said 
contending  parties :  We,  therefore,  have  thought  lit,  by  and  with  tho  advice  of  our  privy 
council,  to  issue  this  our  ro}'al  proclamation.  [The  provisions  of  the  Foreign  Enlistment  Act 
are  here  cited.]  And  we  do  hereby  warn  all  our  loving  subjects,  and  all  persons  whatsoever 
entitled  to  our  protection,  that  if  any  of  them  shall  presume,  in  contempt  of  this  our  royal 
proclamation  and  of  our  high  disijleasure,  to  do  any  acts  in  derogation  of  their  duty  as  sub- 
jects of  a  neutral  sovereign  in  the  said  contest,  or  in  violation  or  in  contravention  of  the  law 
of  nations:  as,  for  example,  more  especiaUy,  by  entering  into  the  military  service  of  either 
of  the  said  contending  parties  as  commissioned  or  non-commissioned  officers  or  soldiers ;  or 
by  serving  as  otficers,  sailors  or  marines  on  board  any  ship,  or  vessel  of  war,  or  transport  of 
or  in  the  service  of  either  of  the  said  contending  parties ;  or  by  serving  as  ofBcers,  sailors, 
or  marines  on  board  any  privateer  bearing  letters  of  marque  of  or  from  either  of  the  said 
contending  parties ;  or  by  engaging  to  go,  or  going  to  any  place  beyond  the  seas  with  an  in- 
tent to  enlist  nr  engage  in  any  such  service;  or  by  procuring  or  attempting  to  procure  with- 
in her  majesty's  dominions  at  home  or  abroad  others  to  do  so ;  or  by  fitting  out,  arming,  or 
equipping  any  ship  or  vessel  to  be  employed  as  a  ship  of  war,  or  privateer,  or  transport  by 
either  of  the  said  contending  parties;  or  by  breaking  or' endeavoring  to  break  any  blockade 
lawfully  and  a'tually  established  by  or  on  behalf  of  either  of  the  said  contending  parties  ;,  or  by 
carrying  officers,  soldiers,  dispatches,  arms,  military  stores  or  materials,  or  any  article  or  ar- 
ticles considered  and  deemed  to  be  contraband  of  war,  according  to  the  law  or  modern  usage 
of  nations,  for  the  use  or  service  of  either  of  the  said  contending  parties.  All  persons  so  of- 
fending mil  incur  and  be  liable  to  the  several  penalties  and  penal  consequences  by  the  said  stat- 
ute, or  by  the  law  of  nations  in  that  behalf  imposed  and  decreed. 

And  we  do  hereby  declare  that  all  our  subjects  and  persons  entitled  to  our  protection,  who 
may  misconduct  themselves  in  the  premises,  wall  do  so  at  their  peril  and  of  their  own  wrong, 
and  that  they  will  in  nowise  obtain  any  protection  from  us  against  any  liabilities  or  penal 
coneequences,  but  will,  on  the  contrary,  incur  our  high  displeasure  by  such  misconduct. 


APPENDIX  489 


No.  VII. 

DISTRIBUTIOX  OF  PRIZE  MONEY. 

ACT  OF  CONGRESS,  JULY  ITtH,  1862. 

Sec.  2.  And  he  it  further  enacted,  TJiat  the  proceeds  of  all  ships  and  vessels,  and  the 
goods  taken  on  board  of  them,  which  sliall  be  adjudged  good  prize,  shall,  when  of  equal 
or  superior  force  to  the  vessel  or  vessels,  making  the  capture,  be  the  sole  property  of  the 
captors  ;  and  wjien  of  inferior  force,  shall  be  divided  ecpially  between  the  United  States  and 
the  officers  and  men  making  the  capture. 

Sec.  3.  A7id  be  it  further  enacted,  That  the  prize  money  belonging-  to  the  ofQcers  and 
men  shall  be  di.stributed  in  the  following  manner : 

First.  To  the  commanding  officer  of  a  fleet  or  squadron,  one-twentieih  part  of  all  prize 
maney  awarded  to  a  vessel  or  vessels  under  his  immediate  command. 

Second.  To  the  commander  of  a  single  ship,  one-tenth  part  of  all  prize  money  awarded 
to  the  ship  under  his  command,  if  such  ship,  at  the  time  of  making  the  capture,  was  under 
the  immediate  command  of  the  commanding  officer  of  a  fleet  or  squadron,  and  three-twen- 
tieths if  his  ship  was  acting  independently  of  such  superior  officer. 

Third.  The  share  of  the  commanding  officer  of  the  fleet  or  squadron,  if  any,  and  the 
share  of  the  commander  of  the  ship  being  deducted,  the  residue  shall  be  distributed  and 
apportioned  among  all  others  doing  duty  on  board,  and  borne  upon  the  books,  according  to 
their  respective  rates  of  pay  in  the  service. 

Fourth.  AVhen  one  or  more  vessels  of  the  navy  shall  be  within  signal  distance  of  another 
making  a  prize,  all  sliall  share  in  the  prize,  and  the  money  awarded  shall  be  apportioned  among 
the  officcr.s  and  men  of  the  several  vessels  according  to  the  rates  of  pay  of  all  on  board 
who  are  borne  upon  the  books,  after  deducting  one-twentieth  to  the  flag-officer,  if  there  be 
any  such  entitled  to  share. 

Fifth.  No  commander  of  a  fleet  or  squadron  shall  be  entitled  to  receive  any  share  of 
prizes  taken  by  vessels  not  under  his  immediate  command  ;  nor  of  such  prizes  as  may  have 
been  taken  by  ships  or  vessels  intended  to  be  placed  under  his  command  Ijefore  they  have 
acted  under  his  immediate  orders;  nor  shall  a  commander  of  a  fleet  or  squadron,  leaving 
the  station  where  he  had  the  command,  have  any  share  in  the  prizes  taken  Ijy  ships  left  on 
such  station  after  he  has  gone  out  of  the  limits  of  his  said  command,  nor  nf'ter  he  has  trans- 
ferred his  command  to  a  successor. 

Si:rt]i.  No  officer  or  other  person  who  shall  have  been  temporarilv  abs:'nt  on  duty  from 
the  vessel,  on  the  books  of  which  he  continued  to  be  borne  whUe  so  absent,  shall  be  deprived,  in 
consequence  of  such  absence,  of  any  prize  money  to  which  he  would  otherwise  be  entitled. 

Sec.  4.  And  he  it  fiirther  enacted,  That  a  bounty  shall  be  paid  by  the  United  States  for 
each  person  on  board  any  ship  or  vessel-of-war  belonging  to  an  enemy  at  the  commence- 
ment of  an  engagement,  which  shall  be  sunk  or  otherwise  destroyed-  in  such  engagement, 
by  an\'  ship  or  vessel  belonging  to  the  United  States,  or  which  it  may  be  necessary  to  de- 
s^roy  in  consequence  of  injuries  sustained  in  action,  of  one  hundred  dollars,  if  the  enemy's 
\-essel  was  of  inferior  force ;  and  of  two  hundred  dollars,  if  of  equal  or  superior  force ;  to 
be  divided  among  the  officers  and  crew  in  the  same  manner  as  prize  money;  and  when  the 
actual  number  of  men  on  board  any  such  vessel  cannot  be  satisfactorily  ascertained,  it  shall 
be  estimated  according  to  the  complement  allowed  to  vessels  of  their  class  in  the  navy 
of  the  United  States;  and  there  shall  l)e  paid  as  bounty  to  the  captors  of  any  vessel-of-war 
captured  from  an  enemy,  which  they  may. be  instructed  to  destroy,  or  which  shall  be 
immediately  destroyed  for  the  public  interest,  but  not  inconsequence  of  injuries  received  in 
action,  fifty  dollars  for  every  person  who  shall  be  on  board  at  the  time  of  such  capture. 

Sec.  5.  And  he  it  further  enacted,  That  the  commanding  officer  of  every  vessel,  or  the 
senior  officers  of  all  vessels  of  the  navy,  which  shall  capture  or  seize  upon  any  vessel  or 
vessels  as  a  prize,  shall  carefully  preserve  all  the  papers  and  writings  found  on  board,  and 
transmit  the  whole  of  the  originals,  unmutilated.  to  the  judge  of  the  district  to  which  such 
prize  is  ordered  to  proceed,  with  the  necessary  witnesses,  and  a  report  of  the  circumstances 
att€ndin    the  capture,  stating  the  names  of  vessels  claiming  a  share  thereof;  and  the  com- 


490  APPENDIX. 

manding  officer  of  every  vessel  in  the  navy  entitled  to,  or  claiming  an  award  of  prize  money, 
shall,  as  early  as  practicable  after  the  capture,  transmit  to  the  navy  department  a  complete 
list  of  tlio  otficjrs  ;uid  men  of  his  vessal,  entitled  to  share,  inserting-  thereon  tlie  quality  of 
every  person  rating,  on  pain  of  forfeiting  his  whole  share  of  the  prize  money  resulting  from 
such  capture,  andsuffcriug  such  farther  punishment  as  a  court-martial  shall  adjudge. 

Sec.  G.  And  h"  U  f't,rtker  enacted,  That  any  armed  vessel  in  the  service  of  the  United, 
States  which  shall  make  a  capture,  or  assist  in  a  capture,  under  circumstances  which  would 
entitle  a  vessel  of  the  navy  to  prize  money,  shall  be  entitled  to  an  award  of  pri/.e  monciv  iu 
the  same  manner  as  if  such  vessel  belonged  to  the  navy,  and  such  prize  money  shall  be 
distributed  and  apportioned  in  the  same  manner  and  under  tlie  same  rules  and  regulations 
as  provided  for  jjcrsons  in  the  naval  service,  and  paid  luider  the  direction  of  the  secretary 

of  ilie  navy. 

Sec.  7.  And  he  it  fwther  enacted,  That  no  person  in  the  navy  shall  take  out  of  a^  prize,  or 
vessel  seized  ;<s  a  prize,  any  money,  plate,  goods,  or  any  part  of  her  equipment,  unless  it 
be  for  the  better  pre.servation  thereof,  or  absolutely  necessary  for  the  use  of  any  of  the 
vessels  or  armed  forces  of  the  United  States,  before  the  same  shall  be  adjudged  lawful  prize 
by  a  competent  court ;  but  the  whole,  without  fraud,  concealment  or  embezzlement,  shall 
be  brought  in,  and  judgment  passed  thereon,  upon  pain  that  every  person  offending  herein 
shall  forfeit  his  share  of  the  capture,  and  suffer  such  further  punishment  as  a  court-martial 
shall  adjudge. 

Sec.  8.  And  he  it  farther  enacted.  That  no  person  iu  the  navy  shall  strip  off  the  clothes, 
or  pillage,  or  in  any  manner  maltreat,  persons  taken  on  board  a  prize,  ou  pain  of  such 
punishment  as  a  court-martial  sliall  adjudge. 

Sec.  9.  And  he  d  further  enacted.  That  ah  ransom  money,  salvage,  bounty,  or  proceeds  of 
forfeiture  or  confi.^cation,  accruing  or  awarded  to  any  vessel  of  the  navy,  shidl  be  distributed 
and  paid  to  the  ollicers  and  men  entitled  thereto,  in  the  same  manner  as  prize  money,  under 
the  direction  of  the  secretary  of  the  navy. 

Sec.  10.  And  he  it  further  enacted,  That  any  person  entitled  to  wages  or  prize  money  may 
have  the  same  paid  to  his  assignee,  provided  tlie  assignment  be  attested  by  tlie  captain  and 
paymaster;  and  in  case  of  the  assignment  of  wages,  the 'power  shall  specify  the  precise 
time  they  commence.  But  the  commander  of  every  vessel  is  required  to  discourage  his 
crews  from  selling  any  part  of  their  wages  or  prize  money,  and  never  to  attest  any  power 
of  attorney,  luitil  lie  is  satisfied  that  the  same  is  not  granted  in  consideration  of  money  given 
for  tlie  purchase  of  wages  or  prize  money. 

Sec.  11.  And  he  it  further  enacted,  That  all  money  accruing  or  which  has  already  accrued 
to  the  United  States  irom  sale  of  prizes  shall  be  and  remain  forever  a  fund  for  the  payme^ut 
of  pensions  to  the  officers,  seamen,  and  marines  who  may  be  entitled  to  receive  the  same; 
and  if  tlio  said  fund  shall  be  insufficient  for  the  purpose,  the  public  faith  is  hereby  pledged 
to  make  up  the  deficiency;  but  if  it  should  be  more  tlian  sufficient,  the  surplus  shall  be  ap- 
plied to  the  making  of  further  provision  for  the  comfort  of  the  disai)led  officers,  seamen,  and 
marines. 


No.  YIII. 

DEPARTMENT  CIRCULAR   LETTERS  OF  INSTRUCTION  TO    NAVAL   COM- 
MANDERS. 

(CIRCULAR.) 

Navy  Department, 

Minj  14,  18G2. 
Commanding  officers  of  vessels  of  the  navy  will,  in  cases  of  captures  made  by  them,  b-:) 
held  to  a  strict  observance  of  the  requirements  of  law  in  relation  to  captured  vessels. 

The  first  soction  of  the  "  Act  for  the  better  government  of  the  navy  of  the  United  States," 
approved  April  2:i,  1800,  provides  that — 


APPENDIX.  491 

"Art.  7.  The  commanding  officer  of  every  ship  or  vessel  in  the  navy,  who  shall  captiire 
or  seize  upon  any  vessel  as  a  prize,  shall  carefully  preserve  all  the  papers  and  writings  found 
on  board  and  transmit  the  whole  of  the  originals,  unmutilated,  to  tliejudge  of  the  district  to 
which  such  prize  is  ordered  to  proceed,  and  shall  transmit  to  the  navy  department  complete 
lists  of  the  officers  and  men  entitled  to  a  share  of  the  capture,  inserting  therein  the  quality 
of  every  i^erson  rating,  on  pain  of  forfeiting  his  whole  share  of  tlie  pri/.o  money  resulting 
from  such  capture,  and  suftering  such  further  punishment  as  a  court-martial  shall  adjudge." 

"  Art.  8.  JSTo  person  in  the  navy  shall  take  out  of  a  prize,  or  a  vessel  seized  as  a  prize, 
any  money,  plate,  goods,  or  any  part  of  her  rigging,  unless  it  be  for  the  better  preservation 
thereof,  or  absolutely  necessary  for  the  use  of  any  of  the  vessels  of  the  United  States,  before 
the  same  shall  be  adjudged  lawful  prize  by  a  competent  court ;  but  the  whole,  without 
fraud,  concealment,  or  embezzlement,  shall  be  brought  in  and  judgment  passed  thereon,  upon 
pain  that  every  person  oS'ending  herein  shall  forfeit  his  share  of  the  capture,  and  suffer  such 
further  punishment  as  a  court-martial,  or  the  'COurt  of  admiralty  in  whicli  the  prize  is  ad- 
judged, shaU  impose." 

"  Art.  9.  No  person  in  the  navy  shall  strip  off  their  clothes,  or  pillage,  or  in  any  manner 
maltreat  persons  taken  on  board  a  prize,  on  pain  of  such  punishment  as  a  court-martial  shall 
adjudge." 

Whenever  it  shall  be  necessary  to  take  any  part  of  the  captured  property  for  the  use  of 
the  United  States,  a  correct  inventory  shall  be  made  of  property  so  taken,  and,  also,  a  careful 
appraisement  of  its  value,  by  suitable  officers  qualified  to  judge  of  such  value;  the  inventory 
and  appraisement  to  be  made  in  duplicate — one  part  to  be  transmitted  to  the  navy  depart- 
ment, and  the  other  to  the'  judge  or  United  States  attorney  of  the  district  into  which  the 
prize  is  sent. 

If,  from  unavoidable  circumstances,  it  should  become  necessary  to  sell  any  portion  of  the 
captured  property,  a  full  report  of  the  facts  shall  be  made  to  the  United  States  attorney  or 
judge  of  the  district  into  vviiich  the  prize  is  sent,  and  any  proceeds  of  sale  shall  be  held 
subject  to  the  order  of  the  district  court. 

The  law  requires  that  the  master  of  the  captured  vessel  shall  be  sent  in,  his  evidence 
being  considered  primary ;  and  as  many  of  the  officers  and  crew  of  the  captured  vessel  as  can 
properly  be  taken  care  of  should  be  sent  forward,  in  custody  of  the  prize  master,  who  will 
report  immediately  on  his  arrival  to  the  United  States  attorney,  as  well  as  to  the  depart- 
ment. 

The  prize  master  will  vigilantly  guard  the  captured  property  intrusted  to  his  care  from 
spoliation  and  theft,  such  offences  leading  to  a  forfeiture  of  the  prize  monej',  both  of  the 
crew  and  the  prize  master. 

A  full  report  will  be  made  to  the  navy  department  of  all  the  material  facts  attending  a 
capture,  and  the  report  will  state  particularly  what  public  ships  or  vessels  were  in  sight  at 
the  time  of  capture,  and  entitled  to  share  in  the  prize;  and  the  commanders  of  all  vessels 
entitled  to  share  will  transmit  complete  prize  lists  to  the  navy  department. 

G.  V.  FOX. 
Acting  Secretary  of  the  Navy. 


(CIRCULAR.) 

Navy  Department, 

November  6,  1861. 

The  attention  of  commanding  officers  in  the  navy  is  called  to  the  following  extract  in 
relation  to  their  duties,  from  the  29th  article  of  the  act  of  April  23,  ]  huO,  for  the  better 
government  of  the  navy : 

"He  shall,  whenever  he  orders  officers  and  men  to  take  charge  of  a  ]';ize  and  proceed  to 
the  United  States,  and  wlienever  officers  and  men  are  sent  from  his  ship,  for  whatever  cause, 
take  care  that  each  man  be  furnished  with  a  complete  statement  of  his  account,  specifying 
the  date  of  his  enlistment  and  tlie  period  rnd  terms  of  his  service,  which  jiccount  shaU  be 
signed  by  the  commanding  officer  and  pr,Tser." 

These  "requirements  must  be  strictly  complied  witli,  and,  in  addition,  duplicate  statements 


492 


APPENDIX. 


must  be  forwarded  to  the  paymaster  of  the  vessel  or  station  to  which  the  men  are  sent, 
together  with  a  descriptive  Ust  of  the  men  sent,  according  to  tlie  form  here  annexed : 


Enlisted. 

Where  Born  and  Personal 

Description 

When. 

a 

P5 

City,  Town,  or 
County. 

6 

P 

<1 

d 
.2 

4-' 

a 

o 
o 
O 

a: 

Hair. 
Complexion. 

Height. 

Names  of  Crev'. 

1 

FORM  OF  LETTER  OF  INSTRUCTION  TO  PRIZE  MASTERS. 


u.  s.  s.- 


Off- 


Sir: 


186 


Proceed  with  the 


under  your  charge  to  the  port  of 


and  tliere  deliver 


her,  together  with  the  accompanying  papers  (which  are  all  that  were  found  on  board)  and 
the  persons  retained  'as  witnesses,  to  the  judge  of  the  U.  S.  District  Court,  or  to  the  U.  S. 
prize  commissioner^!  at  that  place,  taking  his  or  their  receipt  for  the  same.  You  will  not 
deliver  eitlier  lior,  the  papers,  or  the  witnesses,  to  the  order  of  any  other  person  or  parties 
unless  directed  to  act  otherwise  by  the  navy  department  or  flag-officer  commanding  the 
squadron. 

The  was  seized  by  this  vessel,  under  my  command,  on  the day  of 

186  ,  off  this  port,  for  violating  the  rules  governing  the  blockade  at  present  instituted  by 
the  United  States  ;  and  of  the  circumstances  attending  the  case  you  are  sufficiently  aware, 
and  will  communicate  them  when  required  to  do  so  by  competent  authority. 

On  your  arrival  at ,  and  immediately  after  you  have  visited  the  judge  or  prize 

commLssionors,  you  will  call  upon  the  U.  S.  district  attorney  thereat,  show  him  these  in- 
structions, and  give  him  any  information  concerning  the  seizure  he  may  solicit.  Then  you  will 
next  report  yourself,  in  person,  to  the  commanding  officer  of  the  navy  yard  thereat,  show  him 
also  these  instructions,  and  ask  his  directions,  when  needed,  as  to  tlie  disposition  of  your- 
self and  the  rest  constituting  tlie  prize  crew.  Finally,  when  duly  notified  by  the  judge, 
prize  commissioners,  or  district  attornej^,  that  your  services  are  no  longer  wanted  by  the 
court,  you  will  at  once  return  to  your  vessel,  taking  with  you  the  men  under  your  compiand 
and  the  receipt  above  alluded  to,  unless  otherwise  ordered  bysuperior  authority. 

You  will  receive  herewith  a  communication  for  the  secretary  of  the  navy,  giving  him  a 
detailed  account  of  the  prize.     This  you  will  mail  immediately  on  your  arrival  at . 

Your  attention  is  called  to  the  annexed  "Circular,"  lately  issued  from  the  navy  depart^ 
ment,  to  which  have  been  added,  since  it  was  issued,  the  words,  in  the  last  paragraph, 
beginning  with  "  together  with  a  descriptive  list,"  &c. ;  which  you  will  see  is  coraphed  with, 
in  every  particular,  before  sailing  with  your  prize. 

Very  respectfully,  your  obedient  servant, 


To 


Commanding  U.  S.  S, 


APPETfDIX.  493 


No.  IX. 

PROCLAMATION  OF  EMANCIPATION. 

BY    THE   PRESIDENT   OF   THE   UXITED   STATES   OF   AMERICA. 

I,  Abraham  Lincoln,  President  of  the  L^'uited  States  of  America,  and  Commander-in- 
Chief  of  the  Army  and  Navy  thereof,  do  hereby  proclaim  and  declare,  that  hereafter, 
as  heretofore,  the  war  will  be  prosecuted  for  the  object  of  practically  restoring  the  con- 
stitutional relation  between  the  LTnited  States  and  the  people  thereof  in  which  states  that 
relation  is  or  may  be  suspended  or  disturbed ;  that  it  is  my  purpose,  upon  the  next  meeting  of 
Congress,  to  again  recommend  the  adoption  of  a  practical  measure  tendering  pecuniary  aid 
to  the  free  acceptance  or  rejection  of  all  the  slave  states  so  called,  the  people  wliereof  mar 
not  then  be  in  rebellion  against  the  United  States,  and  which  states  may  then  have  volun- 
tarily adopted,  or  thereafter  may  voluntarily  adopt,  the  immediate  or  gradual  abolishment 
of  slavery  within  their  respective  hmits ;  and  that  the  efforts  to  colonize  persons  of  African 
descent  with  their  consent,  upon  this  continent  oi-  elsewhere,  with  the  previously  ol)t:iined 
consent  of  the  governments  existing  there,  will  be  continued. 

That  on  the  first  day  of  Jatmary,  in  tht  year  of  our  Lord  one  thoumhd  eiyld  'ai^idred  and 
sixt)/-three,  alt  persons  held  as  slaves  within  any  state  or  any  designated  part  of  a  state,  the 
■people  whereof  shaU  then  he  in  rebellion  against  the  United  States,  shall  be  tlicu,  thenctforivard, 
and  forever,  free ;  and  the  executive  government  of  the  United  States,  including  the  mili- 
tary and  naval  authority  thereof,  will  recognize  and  maintain  the  freedom  of  such  persons, 
and  will  do  no  act  or  acts  to  repress  such  persons,  or  am-  of  them,  in  anj'  efforts  they  may 
make  for  their  actual  freedom. 

That  the  Executive  will,  on  the  first  day  of  January  aforesaid,  by  proclamation,  designate 
the  states  and  parts  of  states,  if  any,  in  which  the  people  thereof,  respectively,  shall  then 
be  in  rebellion  against  the  United  States ;  and  the  fact  that  any  state,  or  the  peo})le  thereof, 
shall  on  tliat  da_y  be  in  good  faith  represented  in  the  Congress  of  the  United  States  b\'  members 
chosen  thereto  at  elections,  wherein  a  majority  of  the  qualified  voters  of  such  state  shall  have 
participated,  shall,  in  the  absence  of  strong  countervailing  testimony,  be  deemed  conclusive 
evidence  that  such  state  and  the  people  thereof  have  not  been  in  rebellion  against  the  United 
States. 

That  attention  is  hereby  called  to  an  act  of  Congress  entitled  "  An  act  to  make  an  ad- 
ditional article  of  war,"  approved  March  13th,  1862,  and  which  act  is  in  the  words  and 
figures  following: 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  hereafter  the  following  shall  be  promulgated  as  an 
additional  article  of  war  for  the  government  of  the  army  of  the  United  States,  and  shaU 
be  obeyed  and  observed  as  such. 

"  Ak'.'icle.  All  officers  or  persons  in  the  military  or  naval  service  of  the  United  States  are 
prohibited  from  employing  any  of  the  forces  under  their  respective  commands  for  the  pur- 
pose of  returning  fugitives  from  service  or  labor  who  may  have  escaped  from  any  person  to 
whom  such  service  or  labor  is  claimed  to  be  due,  and  any  ofiicer  who  shall  be  found  guilty 
by  a  court-martial  of  violating  this  article  shall  be  di.sraissed  from  the  service. 

"  Section  2.  And  be  it  further  enacted,  that  this  act  .shall  take  effect  from  and  atl:er  its 
passage." 

Also  to  the  ninth  and  tenth  sections  of  an  act  entitled  "  An  act  to  suppress  insurrection, 
to  punish  treason  and  rebellion,  to  seize  and  confiscate  property  of  rebels,  and  for  other 
purposes,"  approved  July  17th,  1862,  and  which  sections  are  in  the  Avords  and  figures 
following : 

"Sec.  9.  And  be  it  further  enacted,  that  all  slaves  of  persons  who  shall  hereafter  be 
engaged  in  rebellion  against  the  government  of  the  United  States,  or  who  shall,  in  anyway, 
give  aid  or  comfort  thereto,  escaping  from  such  persons  and  taking  I'cfuge  within  the  lines 
of  the  array ;  and  all  slaves  captured  from  such  persons  or  deserted  hj  them  and  coming  under 
the  control  of  the  government  of  the  United  States,  and  all  slaves  of  such  persons  found 
in  (or  being  within)  any  place  occupied  by  rebel  forces  and  afterward  occupied  by  the 


494  APPEin)ix. 

forces  of  the  United  States,  shall  bo  deemed  captures  of  war,  and  shall  be  forever  free  of 
tlieir  ssrvitude  and  not  again  .held  as  slaves. 

"Sec.  10.  And  be  it  further  enacted,  That  no  slave  escaping  into  anj  state  territory,  or 
the  District  of  Columbia,  from  any  of  the  states,  shall  be  delivered  up,  or  in  any  way  impeded 
or  hindered  of  his  liberty,  except  for  crime  or  some  offence  against  the  laws,  unless  the  per- 
son claiming  said  fugitive  shall  first  make  oath  that  the  person  to  whom  the  labor  or  service 
of  such  fugitive  is  alleged  to  be  due,  is  his  lawful  owner,  and  has  not  been  in  arms  against 
the  United  States  in  the  present  rebellion,  nor  in  any  way  given  aiJ  and  comfort  t])ereto; 
and  no  person  engaged  in  the  military  or  naval  service  of  the  United  States  shall,  under 
any  pretence  whatever,  assume  to  decide  on  the  validity  of  the  claim  ol  any  person  to  the 
service  or  labor  of  any  other  person,  or  surrender  up  any  such  person  to  the  claimant,  on 
pain  of  being  dismissed  from  the  service." 

And  I  do  hereby  enjoin  upon  and  order  all  persons  engaged  m  the  military  and  naval 
service  of  tlie  United  States,  to  observe,  obey,  and  enforce,  within  their  respective  spheres  of 
service,  the  act  and  sections  above  recited. 

And  the  Plxecutive  will  in  due  time  recommend  that  all  citizens  of  the  United  States 
who  shall  have  remained  loyal  thereto  throughout  the  rebellion,  shall  (upon  the  restoration 
of  the  constitutional  relation  between  the  United  States  and  their  respective  states  and 
people,  if  the  relation  shaU  have  been  suspended  or  disturbed)  be  compensated  for  all 
losses  by  acts  of  tlie  United  States,  including  the  loss  of  slaves. 

In  witness  whereof,  I  have  hereunto  set  my  hand,  and  caused  the  seal  of  the  United 
States  to  be  affixed. 

Done  at  the  city  of  "Washington,  this  twenty-second  day  of  September,  in  the  year  of 
our  Lord  one  thousand  eiglit  hundred  and  sixty-two,  and  of  the  Independence  of  the  Uni- 
ted States  the  eighty-seventh. 

ABRAHAM  LINCOLN. 
By  the  President. 

William  H.  Seward,  Secretary  of  State. 


INDEX, 


A. 

PAGB 

Alien  Enemy — Defined 108 

Hostility  of,  coextensive  with  aUegiance ]  08 

Hostility  of,  commences  with  war,  and  ends  only  with  its  terminitioii 109 

Liabilities  of,  attached  to  those  who  do  not  owe  allegiance  to  th'j  adverse  bel- 
ligerent, by  reason  of  hostility  of  character,   impressed  upon  person  or 

property 105 

Allies — Rule  of  suspension  of  commerce,  applicable  alike  to,  as  to  actual  belligerents  .  27 

Appeal — From  decrees  in  prize  causes 433 

Effect  of,  as  to  possession  of  the  prize  property  or  its  proceeds 433 

To  what  courts  made,  under  the  judicial  system  of  the  United  States 434 

B. 

Belligerents,  Laioful — "Who  to  be  so  regarded 8 

"Who  to  be  so  regarded  in  a  civil  war 8 

The  question  considered  with  reference  to  the  civil  war  in  the  United  States. .  8 

The  Southern  insurgents  so  declared  by  proclamation  of  the  British  Queen. ...  9 

Legislative  and  judicial  precedents  as  to 10 

Not  binding  in  the  exceptional  case  of  the  slaveholders'  rebellion 13 

Rule  of  suspension  of  commerce  between 16 

Foundation  of  the  rule  of  suspension  of  commerce  between 16 

Judicial  decisions  on  the  rule  of  suspension  of  commerce  between 17 

Contracts  suspended  between 20 

Courts  closed  against  enforcement  of  contracts  between 20 

Rule  of  suspension  of  commerce  between,  relaxed  in  particular  cases 21 

Rule  of  suspension  of  commerce  between,  rigidly  enforced  by  decision  of  United 

States  Courts .' 23 

Necessity  of  strict  adherence  to  the  rule  of  suspension  of  commerce  between..  24 

Penalty  for  the  violation  of  the  rule  of  suspension  of  commerce  between 24 

Truce  or  cartel  ships,  exception  to  the  rule  of  suspension  of  commerce  between  25 

Contrivances  to  evade  the  rule  of  suspension  of  commerce  between . , 28 

Rule  of  suspension  of  commerce  between,  enforced  in  law  as  well  as  admiralty 

courts 30 

Rule  of  suspension  of  commerce  between,  applicable  on  land  as  well  as  water  .  30 
Cases  illustrating  the  enforcement  of  the  rule  of  suspension  of  commerce  be- 
tween    31 

Mitigation  of  rule  of  suspension  of  commerce  between,  in  cases  of  great  hard- 
ship   34 

Cases  illustrating  the  mitigation  of  the  rule  of  the  suspension  of  commerce 

between 34 

Rights  of.  to  interfere  with  the  commerce  and  capture  the  property  of  those — 
not  adverse  belligerents,  whose  persons  or  property  are  -impressed  with 

liostility  of  character 108 

Righrs  of.  as  against  each  other 159 

lii;j'.r-  of.  ;!s  against  each  other,  leading  principles  as  to 159 


496  rtTDEX. 

PAGE 

Belligerents— Kights  of,  as  against  each  other,  applied  to  slave  property  in  the  United 

States — opinion  of  Professor  Parsons 1C2 

Rights  of,  as  to  embargo 1*^^ 

Rights  of,  as  to  reprisals ^'^ 

Rights  of,  as  to  captures ^ ||" 

Blockade — Definition  of. ^2^ 

A  belligvrcnt  right  by  the  estabUshed  law  of  nations 2(5 

Requisites  to  the  validity  of 274 

■    Actual,  requisite  to  validity — and  what,  in  law,  is  intended  by  actual  blockade     276 
Knowl'edije  of,  by  neutral — requisite  either  by  formal  notification  or  notoriety 

of  the  fact 278 

Cases  illustrating  the  question  of  knowledge  of 280 

Violation  of,  requisite  to  subject  neutral  property  to  the  penalty  of  confiscation     282 

What  cou:^titutes  a  violation  of n 283 

What  may  excuse  a  violation  of 284 

Excuses  for  violation  of,  severely  scrutinized _. . .     285 

Excuses  for  violation  of,  regarded  less  severely  in  favor  of  less  civilized  nations     286 

Penaltv  for  violation  of 287 

Vessel  violating — not  only  iii  ddicto,  and  subject  to  capture  until  the  termina- 
tion of  the'voyage,  but  on  the  voyage  next  succeeding  that  of  the  offence.     288 
Duration  of  liability  to  capture  for  violation  of,  considered  on  principle  and 

authoritv j 289 

Doctrine  of  liability  to  capture  for  violation  of,  extended  to  next  succeeding 

voyage,  applied  in  the  case  of  The  Mersey 290 

Doctrine  of  liability  to  capture  for  violation  of,  extended  to  next  succeeding 

voyage,  applied  in  the  case  of  The  Mnjor  Barhour 291 

Doctrine  of  liability  to  capture  for  violation  of,  extended  to  next  succeeding 

voyage,  applied  in  the  case  of  The  Joseph  11.  Toone 291 

Doctrine  of  violation  of  by  approach  to  the  mouth  of  the  blockaded  port  for 

inquiry,  considered  in  the  recent  case  of  The  Cheshire 292 

Doctrine  of  violation  of,  by  approach  to  the  mouth  of  the  blockaded  port  for 

inquiry,  coiT-idered  in  the  recent  case  of  The  Delta 292 

Doctrine  of  violation  of,  by  approach  to  the  mouth  of  the  blockaded  port  for 

inquiry,  considered  in  the  recent  case  of  The  Empress 293 

Doctrine  of  violation  of,  by  approach  to  the  mouth  of  the  blockaded  port  for 

inquiry,  considered  in  the  recent  case  of  The  Admiral 295 

The  doctrine  considered,  of  violation  of,  by  taking  in  cargo  in  a  blockaded  port 

— and  recent  cases 296 

The  right  of,  by  a  nation,  of  its  own  ports,  considered  in  connection  with  the 

blockade  of  the  Southern  ports,  ordered  by  the  government  of  the  United 

States 299 

Judicial  construction  of  Executive  proclamation  of _   309 

Objection  that  the  pecuhar  phraseology  of  the  proclamation  of,  modifies  its 

character,  considered 310 

Question  of  alleged  modification  of  character  of  by  the  terms  of  the  Executive 

proclamation,  discussed  and  determined  in  the  case  of  The  Empress 316 

Question  of  alleged  modification  of,  &c.,  discussed  and  determined  in  the  case 

of  The  Revere 320 

Question  of  alleged  modification  of,  &c.,  discussed  and  determined  in  the  case 
of  The  Admiral 323 

C. 

Cojptors — Duty  of,  on.  capture 393 

Duty  of,  as  to  care  and  safe  custody  of  captured  property 393 

Liability  of,  for  neglect  of  safe  custody  or  misconduct,  in  relation  to  captured 

property 393 


<3>^ 


INDEX. 


49T 


PAGE 

Captors — Duty  of,  to  send  prize  into  convenient  port _. 393 

Duty  of,  to  put  prize  master  and  crew  on  board  of  prize  vessel 394 

Prohibited  from  converting  cargo,  or  brealiing  bulk.     Exceptions  to  rule  as  to.  395 
Duty  of,  to  send  master,  principal  officers,  and  some  of  the  crew  of  the  cap- 
tured vessel  into  the  port  of  adjudication  as  witnesses 395 

And  great  importance  of  strict  observance  of  this  duty 395 

Duty  of,  on  arrival  with  prize  at  port  of  adjudication 396 

Duty  of,  further  considered,  under  orders  and  adjudications  growing  out  of  the 

war  in  the  United  States : 436 

Duty  of,  as  to  sending  in  captured  property.     Exceptions  in  case  of  physical 

impossibility  or  moral  restraint — Case  of  The  British  Empire.  .  .    436 

The  necessities  of,  either  as  personal  supplies,  or  for  use  in  the  prosecution  of 

the  war — excuse  for  not  sending  in  captured  property 431 

Duty  of,  to  have  property  appraised  which  is  not  sent  in,  but  appropriated  to 

government  use 438 

Duty  of,  as  to  persons  captured  on  board  vessels 439 

Consequence  of  neglect  of  duty  by,  in  not  sending  in  captured  master,  officers, 

and  crew,  as  witnesses — considered  in  the  case  of  The  Julia 439 

Duty  of,  to  treat  captured  persons  as  detained  witnesses,  not  prisoners  of  war.  441 
Duty  of,  not  to  separate  captured  persons  from  the  prize,  except  in  cases  of  ne- 
cessity    441 

Duty  of,  as  to  treatment  of  captured  persons,  considered  in  the  case  of  The 

Louisa  Agnes 442 

Duty  of  as  to  vessel's  papers 442 

Duty  of,  as  to  other  papers  found  on  board  the  prize 449 

Duty  of,  as  declared  in  circular  of  the  Navy  Department  of  the  United  States.  450 

Capture — Definition  of 175 

By  public  and  private  armed  vessels 176 

By  privateers 176 

Authority  and  power  of 176 

To  be  lawful,  must  be  commissioned 177 

How  regardec"  by  the  United  States 178 

Considered  in  conflict  with  the  spirit  of  the  age 178 

Efforts  made  in  the  United  States  to  abolish 179 

Revocation  of  commission  for 185 

And  letters  of  marque — distinction  between 186 

Not  invalid,  though  the  master  is  an  alien  enemy 186 

Legality  of,  may  depend  on  government  order 189 

Intention  to  seize,  requisite  to  tlie  validity  of 189 

Invalid  as  to  neutral  power,  if  made  in  neutral  waters — may  be  valid  as  be- 
tween the  belligerents 190 

Question  as  to  time  of. 190 

Whether  actual  possession  requisite  to  its  validity 190 

To  be  lawful,  must  be  made  by  public  or  private  armed  ships,  commissioned. . .  194 

By  boats  from  man-of-war 195 

Restitution,  no  bar  to  second 196 

May  be  made  by  convoying  ship 197 

Liability  of  wrong-doer  for  injury  resulting  from 198 

Vindictive  damages  for  injury  resulting  from,  only  given  in  extreme  cases. . . .  200 

Property  subject  of,  Hable  only  to  visible  liens  or  encumbrances 201 

Property  subject  of,  must  be  sent  in  to  convenient  port  of  en  poor's  country  for 

adjudication 201 

Duty  of  captors,  on  making 202 

Duty  of  prize  master  and  crew,  on  taking  in  property,  the  subject  of 203 

Capture,  Joint — Definition  of 203 

Doctrine  of  constructive  assistance  in 204 

As  to  vessels  in  sight,  to  constitute 205 

32 


498  INDEX. 

Pi.aB 

Capture,  Joint— Rn\e  and  reasons  of,  in  relation  to  vessels  in  sight,  to  constitute 211 

Rule  of  joint  enterprise  to  constitute 213 

Rule  in.  as  to  revenue  cutter • 213 

Cases  illustrating  the  doctrine  of  constructive  assistance,  to  constitute. .......  214 

Not  as  between  vessels  in  sight  only  from  mast-head 219 

Proof  of  vessel  in  sight  requisite  to  constitute  ._ 220 

Mere  intimidation  without  co-operation  insufficient  t6  constitute 221 

Mere  association  insufficient  to  constitute 221 

"Whether  it  can  be  made  by  co-operation  of  army  with  naval  forces 225 

Rights  of  joint-captors  in,  not  affected  by  the  frand  of  the  actual  captor 228 

Previous  concert,  sufficient  basis  for,  if  not  abandoned  at  the  time  of  capture. .  231 

Claim to  prize  property — its  proper  form,  what  it  should,  and  what  it  may  not  contain  403 

By  whom  it  may  be  made *03 

When  it  must  be  made 403 

Who  are  not  allowed  to  make *04 

Affidavit  in  support  of 4:04 

Until  filed,  testimony  and  papers  in  prize  cause,  not  examinable  by  claunant. .  405 
For  delivery  of  captured  property  to  claimants,  on  bail,  before  a  hearing,  or  af- 
ter condemnation  aud  appeal,  never  allowed 406,  431 

Dehvery  of  captured  property  to,  on  bail,  the  doctrine  in  relation  to,  further  con- 
sidered, in  connection  with  the  decision  in  the  recent  case  of  The  Amy 

Warwick,  &c i 457 

Requisites  of,  considered  with  the  recent  decisions  in  the  cases  of  The  Empress 

and  The  Amy  Warwick 456 

Contraband  of  War — Definition  of. 32T 

Commerce  in,  prohibited  to  neutrals 327 

What  is  considered 328 

Whether  and  under  what  circumstances  provisions  are 328 

Penalty  for  violation  of  rule  prohibiting  commerce  in 328 

Rule  of  right  of  pre-emption  of,  instead  of  confiscation,  when  and  how  appUed  330 

Innocent  goods  mixed  with,  are  aUke  confiscated 332 

Hostile  dispatches  considered 332 

Carried  iu  neutral  vessel,  by  the  old  rule,  subjected  vessel,  as  well  as  cargo,  to 

confiscation,  relaxed  in  modern  times 333 

Treaty  provisions  as  to • 334 

Costs  and  Disbursements — Nature  of  in  prize  proceedings,  and  how  hquidated 464 

Embarrassments  in  relation  to,  for  want  of  requisite  legislation 465 

Attempted  remedy  of  embarrassments  in  i-elation  to,  by  statute  of  United  States  465 
Construction  of  statute  in  relation  to,  by  the  Circuit  Court  of  the  United  States 

in  the  Second  Circuit,  in  the  cases  of  The  Sarah  Starr  and  The  Aiglurth.  467 
Contradictory  legislation  in  relation  to,  at  the  last   session  of  the  Congress 
of  the  United  States — necessity  of  immediate  and  careful  revision  of  thB 

law 469 

D. 

Distribution — Decree  of,  to  follow  condemnation  and  sale  of  captured  property 413 

Who  are  entitled  as  distributees  in  decree  of 413,  462 

When  claim  for  must  be  made 462 

Proportionate  interests  of  distributees  in  decree  of 414 

Decree  of,  and  proportionate  interests,  as  provided  by  recent  acts  of  Congress 

{vi(k  Appendix) 

Decree  of,  settling  proportionate  interests  where  capture  is  made  by  private 

armed  vessels 415 

Decree  of  upon  what  evidence  based,  and  how  taken 415 

Decree  of  necessary  before  distribution  can  be  made 416 

Decree  of  how  executed  under  recent  act  of  the  Congress  of  the  United  States.  i6d 


INDEX.  499 

E. 

PAGE 

Embargo — Defined 164 

"Warlike  and  civil 165 

Modem  practice  as  to 165 

Operation  and  effect  of 166 

Civil 168 

Civil,  ordered  bj  United  States  government  in  1807 169 

R 

Further  Proof — Order  for,  in  a  prize  cause,  when  allowed  by  the  court 426 

When  not  allowed 427 

Evidence  on  order  for 428 

How  taken,  when  ordered 428 

H. 

Hearing,  The — In  prize-courts 407 

Presumptions  of  law  on 407 

Efiiect  of  legal  presumptions  as  burden  of  proof  on 407 

Question  of  nationality  of  property  on 408 

Question  of  national  character  of  vessel  on 409 

Question  of  national  character,  as  affected  by  domicile  on 409 

Question  of  national  character,  as  affected  by  trade  on 409 

Question  of  national  character  on,  as  affected  by  the  flag  or  pass  of  the  ship. .  410 

Question  of  the  transfer  during  war  of  enemy's  ships  on 411 

Question  on,  as  to  transfers  in  transitu 411 

Question  on,  as  to  illegality  of  trade 411 

Questions  on,  as  to  violation  of  blockade,  of  contraband  trade,  of  prohibited 

commerce,  of  resistance  to  search 412 

Eostile  Character — Impressed  upon  persons  and  property,  subjecting  to  the  liabilities  of 

aUen  enemies .' 109 

By  ownership  of  soil 110 

By  hostile  residence 110 

Uniformity  of  rule  as  to 110 

Illustrations  of  rule  as  to,  in  courts  of  admiralty Ill 

Rule  as  to,  applied  in  courts  of  common  law 113 

Rule  as  to,  as  applied  in  the  United  States 113 

What  residence  is  requisite  to  impress  with 115 

Cases  illustrating  impression  of,  by  residence IIG 

Importance  of  the  animus  manendi  as  to,  by  residence 117,  126 

Personal  residence  not  requisite  to  impress  with 124 

Impressed  by  residence  of  agent 124 

Impressed  by  the  nature  of  the  trade 124 

Doctrine  in  the  United  States  as  to  impression  of,  by  the  nature  of  the  traffic.  125, 127 

Impressed  by  official,  without  actual  residence 126 

Of  ship,  determined  by  the  residence  of  the  owner 1.^0 

Of  ship,  by  her  flag  or  pass 130,  135 

Of  ship,  by  the  nature  of  her  employment 131 

Impressed  by  employment  in  the  commerce  ordinarily  confined  to  tlie  adverse 

belligerent 133 

Impressed  by  engagement  in  traffic  under  authority  of  the  adverse  belligerent.  134 

Transfers  in  transitu,  to  avoid  the  rule  of  impression  with 138 

Reservations  of  risk,  to  avoid  the  rule  of  impressment  with 141 

Unsuccessful  attempts  to  evade  the  rule  of  impression  with,  made  by  neutrals, 

during  the  war  in  the  United  States 14g 

In  the  case  of  The  Josejih  H.  Toone 148 

The  General  Parkhill. X49 


500 


INDEX. 


PAGE 

Hostile  Character — In  the  caee  of  The  Amy  Warwick 161 

Not  terminated  bv  transfers  from  enemies  to  neutrals,  the  same  being  void  as 

in  fraud  of  belligerent  rights 152 

Secret  liens  on  property  impressed  with,  not  regarded  in  prize-courts 153 

This  doctrine  discussed  in  the  case  of  The  Hiawatha 153 

The  Crenshaw 153 

The  Delta 154 

The  Areola 155 

The  Amy  Warwick 156 

N. 

Neutrals — Who  are  considered 259 

The  general  commercial  rights  of •. 259 

Rights  of,  as  to  pursuit  of  accustomed  trade 259 

Exclusion  of,  from  trado  with  colonial  possessions  of  the  enetny 260 

Reasons  for  the  rule  of  exclusion  of  from  the  enemy's  colonial  trade 261 

Consequences  of  violation  by,  of  the  rule  of  exclusion  from  the  enemy's  colo- 
nial trade 262 

Confiscation  of  property  of,  for  employment  in  enemy's  colonial  trade,  by  for- 
mer rule,  penalty  not  now  exacted,  except  iu  cases  of  specific  fraud 263 

Excluded  as  well  from  the  coasting  as  the  colonial  trade  of  belligerents 263 

Admitted  to  colonial  trade  in  time  of  peace,  not  excluded  in  time  of  war 267 

Rule  of  admission  of,  to  colouial  trade  in  war  which  had  been  allowed  in  time 

of  peace,  whence  it  originated  267 

Cases  illustrating  the  application  of  the  rule  of  admission  of,  to  colonial  trade  in 

war,  which  had  been  permitted  in  time  of  peace,  and  exceptions  thereto. .  268 

Circuitous  trade  by,  unlawful,  where  direct  trade  prohibited 270 

Penalty  for  violation  of  this  rule  by 272 

Rights  of  iu  connection  with  the  question  of  "free  ships,  free  goods,"  the 
armed  neutrality,  and  position  of  the  United  States  government  on  this 

subject 274 

Jurisdiction  of,  inviolable  by  belligerents 346 

Captures  made  in  waters  of,  unlawful 347 

No  power  to  release  captures  made  beyond  the  jurisdiction  of,  when  taken  into 

the  ports  of 348 

Treaty  stipulations  modifying  the  rule  of  non-interference  by,  iu  cases  of  capture  348 

P. 

Postliminium — Defined ^  234 

The  general  right  of 235 

Termination  of  the  right  of 239 

The  right  of  by  the  laws  of  the  United  States 241 

Privateers — Character  of 176 

Their  authority  and  power 176 

Must  be  commissioned 176 

Their  tolerance,  in  conflict  with  the  spirit  of  the  age 178 

Efforts  in  United  States  to  abohsh 179 

Revocation  of  commission  of 184 

Validity  of  caj)ture  by,  though  master  an  alien  enemy 186 

Distinction  between,  and  letters  of  marque 186 

Liability  of  registered  owner  of 186 

Rule  of  liability  of  registered  owner  of,  not  applicable  to  foreigner.^ 186 

Limitation  of  liability  of  owners  of 187 

Owners  of,  liable  jointly  and  severally 188 

Not  considered  property,  on  capitulation 188 

Prize — Jurisdiction,  practice,  and  proceedings  of  courts  of 383 


rta)EX  501 

PAGB 

Prize — Jurisdictiou  vested  in  courts  of  admiralty. 383 

Jurisdiction  exclusively  in  courts  of  the  captor's  country 384 

Property  captured  as,  need  not  be  in-  a  port  of  the  captor's  country,  to  give  the 

court  jurisdiction  to  adjudicate 385 

Decree  of  condemnation  of  property  captured  as,  requisite  to  complete  transfer 

of  title 385 

Decree  upon  property  captured  as,  final  between  the  parties — open  to  review 

between  governments 385 

fVize  Cargo — Unlivery  of,  pendente  lite 429 

"When  unlivery  ordered,  and  how  effected 429 

Expense  of  unlivery  of,  by  whom  paid 430 

Order  of  appraisement  and  sale  of,  when  made 431 

At  whose  expense,  sale  of,  made,  pendente  life 431 

Delivery  of,  on  bail 432 

Liability  of  bail  on  delivery  of 433 

Prize  Commissioners — Thoir  appointment,  power,  and  duties 396 

Duty  of,  to  receive  possession  of  prize  property 397 

Duty  of,  to  seal  it  with  their  seals,  and  safely  keep  the  same  until  process  be 

issued 397 

Duty  of,  to  receive  papers  found  on  board  from  the  prize  master,  to  take  his 

affidavit  of  identification,  to  seal  up  and  file  the  same 397 

Duty  of,  to  take  the  testimony  of  the  witnesses,  and  rules  as  to  the  examina- 
tion of  {vide  interrogatories  in  the  Appendix) 398 

Duties  of,  prior  to  recent  legislation  by  United  States  Congress 452 

Duties  of,  considered  with  reference  to  the  act  of  Congress  of  March  25th, 

1 862,  and  judicial  construction  of  the  same 452 

Prize  Courts — Letter  from  Sir  William  Scott  and  Sir  John  Nicholl  to  Mr.  Justice 

Story,  in  relation  to  jurisdiction  of,  and  practice  and  proceedings  in  (vide 

Appendix) 386 

Notes  of  Mr.  Justice  Story,  in  Wheaton's  Reports,  in  relation  to  jurisdiction  of, 

and  practice  and  proceedings  in 386 

Extent,  character,  and  peculiarities  of  jurisdiction  of 388 

Prize,  Decree — If  no  claim  be  filed  on  the  return  of  the  monition 402 

Of  condemnation  on  hearing,  and  effect  of 406 

Of  condemnation  and  proceedings  thereon 413 

Appeals  from 433 

Prize  Libel — Its  proper  form 400 

By  whom  filed 401 

Monition  and  warrant  issued  with , 401 

How  and  by  whom  served 402 

Requisites  of,  considered  and  determined  in  the  cases  of  The  Revere  and  The 

Empress 455 

R. 

Random — Definition  of 24T 

Prohibited  b}''  act  of  Parliament  of  Great  Britain 247 

Valid  by  the  law  of  nations 247 

Not  prohibited  by  statute  of  United  States 248 

Recapture — Defined 233 

Distinguished  from  rescue 233 

A  duty  of  public  ship 233 

No  commission  requisite  for 242 

Reprisals — Generally 171 

To  redress  individual  wrongs. 171 

Right  of,  acknowledged  by  all  nations 175 

Acted  upon  in  the  United  States * 175 


502  INDEX. 

k 

PAG)' 

iZe5CW«— Defined 233 

A  meritorious  service .•  •  •^*^' 

Unlawful,  by  captured  crew  of  neutral  merchant  vessel— the  doctrine  consid- 
ered with  reference  to  the  case  of  the  Emily  St.  Pierre 256 

EesUMion^-Decree  of,  effect,  as  to  the  question  of  costs  and  damages 42 ! 

When  costs  and  damages  are  allowed  to  claimants  on  decree  of 4'2-i 

"When  costs'  and  damages  are  allowed  to  captors  on  decree  of 42.". 

How  damages  ascertained  on  decree  of 4'-M 

Decree  of,  how  executed 42  i 

Decree  of.  on  recapture ^^ 

When  decreed,  and  on  what  terms  as  to  payment  of  salvage  on  recapture  ....  41  .• 

As  fixed  by  statute  of  the  United  States 42'^^ 

The  doctrine  of  payment  of  salvage  on,  considered  upou  principle 251 

Bight  of  Search — A  belligerent  right,  estabhshed  by  the  law  of  nations 33."- 

Penalty  for  resistance  to ^^^ 

Applied  to  merchant  vessels  only 33b 

How  exercised <  - ^p" 

Treaty  provisions  as  to » ^^ ' 

What  to  be  examined  in  exercising  the 337 

What  ships'  papers  to  be  examined 338 

Whether  merchant  vessels  saihng  under  convoy  are  subjected  to  the 339 

Discussions  and  collisions  on  this  subject 340 

Exercise  of,  as  claimed  by  Great  Britain  for  discovery  in  neutral  ships  and 

removal  therefrom  of  alleged  British  subjects 343 

As  involved  in  the  causes  of  the  war  of  1812  between  the  United  States  and 

Great  Britain 344 

For  the  suppression  of  the  slave  trade 345 


Salvage,  Military — Definition  of 241 

Due  to  recaptors,  on  restitution  of  recaptured  property 241 

Rate  of  compensation  as 241 

Due  in  cases  of  rescue  as  in  recapture 242 

Due  to  uncommissioned  recaptors 243 

Not  due  to  a  public  vessel  for  recapture  of  another  public  vessel,  by  the 

English  law 243 

No  hazard  need  be  encounti  Ted  to  entitle  to 243 

Every  person  aiding  in  a  rescue  has  a  lien  for 243 

Joint  recaptors  entitled  to 244 

Privateers  in  sight  not  entitled  to,  when  recapture  made  by  a  pubhc  ship 24-1 

Revenue  cutters  entitled  to,  for  recapture ^45 

Freight  earned,  contributes  to  pay 24.') 

Due  from  neutrals  on  recapture 24!! 

The  doctrine  of  payment  of  miUtary  salvage  on  recapture,  considered  on  prin- 
ciple   251 

T. 

Trent — The  case  otThe,  reviewed 349 

W. 

War — Defined 1 

The  power  to  declare,  where  vested 1 

The  power  to  declare,  where  vested  under  the  Constitution  of  the  United 

States  T 2 


nn)EX  505 

PAGB 

War — Formal  declaration  of,  considered  requisite  in  early  ages 4 

Formal  declaration  of,  not  required  by  the  existing  law  of  nations 5 

Proclamation  of,  for  guidance  of  citizens  and  neutrals 5 

Act  of  Congress  of  the  United  States,  declaring  the  existence  of,  considered 

equivalent  to  a  formal  declaration 6 

Its  legal  commencement — when  by  statute,  the  date  of  the  act -'J 

Effect  of,  on  persons  and  property 36 

General  right  of  reprisals  and  captures  resulting  from 37 

Right  of  capture  and  reprisal  resulting  from,  in  the  middle  ages 38 

Right  of  capture  and  reprisal  resulting  from,  as  modified  by  treaty 38 

Rule  as  to  right  of  capture  and  reprisal  resulting  from,  in  absence  of  treaty 

stipulations 39 

"What  property  exempt  from  the  rule  of  reprisal  during 40 

Public  debts,  exempt  from  confiscation  during 40 

Private  debts  suspended  during,  not  confiscated 41 

Treaties  as  to  conflscability  of  public  funds  during 41 

War   Civil  in  the  United  States 44 

Belligerent  blockade  established  in  the  conduct  of  the 45 

"Wisdom  of  the  policy  of  the  belligerent  blockade  in  prosecution  of  the,  rather 

than  municipal  interdict 45 

Objections  raised  to  the  belligerent  blockade  in  the  prosecution  of  the 46 

Judicial  discussions  and  decisions  of  questions  in  connection  with  the 47 

The  Tropic  Wind,  opinion  of  Mr.  Justice  Dunlop 48 

The  General  Parkhill,  opinion  of  Mr.  Justice  Cadwallader 55 

The  Hiawatha  and  nine  other  cases,  opinion  of  Mr.  Justice  Betts 67 

The  F.  W.  Johnson,  opinion  of  Mr.  Justice  Giles 76 

The  Amy  Warwick,  opinion  of  Mr.  Justice  Sprague 82 

The  Amy  Warivick,  on  the  claim  of  Dunlop,  Moncure  &  Co.,  opinion  of  Mr. 

Justice  Spraguo 98 


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